Attempted Offences and Penalties in Victoria (VIC)

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Even in their inchoate (nearly formed) state, some offences or violations are just as dangerous as any other. For the State of Victoria, these offences are prohibited as specified in section 321M of the Crimes Act 1958 (Vic).

A wide range of actions or offences under the Act can qualify as inchoate offences in Victoria. It is also possible in court to hear a more appropriate offence instead of the candidate being earlier charged.

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

What is an Attempt under Victorian law?

Section 321M of the Act considers a person guilty of an attempted offence if they attempted to commit that offence. It includes where the person;

• Attempts to commit an indictable crime under the law, and
• Intended to commit the offence regardless of the circumstance that prevented it

What constitutes an attempted offence in Victoria?

Since matters related to attempts can be very vague, the court considers specific actions as indicators that a person attempted or is capable of committing the offence. Some of the basic indicators include;

Where the person is;

• ✔ More than adequately prepared to commit the crime, either by their appearance or other means.
• ✔ More closely connected to the crime, rather than a distant manner
• ✔ Intends the offence through any means including the subject of the offence
• ✔ Reasonably believes that certain circumstances or instruments relating to the matter would exist or existed.

Certain circumstances for “Attempted” offences

For some instances, the court will need the prosecutor to prove that there was the existence of certain circumstances that would lead to the offence.

For example, in a matter of Rape/other sexual offences, the prosecutor must prove that the offender did not reasonably believe that the victim would consent to the penetration or touching (per the offence). Therefore, the person will still be guilty of an offence regardless of the outcome.

Also, the law considers a person guilty of this offence regardless of their ignorance of certain facts. Such defendants will not have a defence to their case if they claim that they were unaware of some circumstances or case to the matter.

Attempts to commit an offence outside Victoria

Section 321O of the Crimes Act 1958 (Vic) finds a person guilty of attempted offences if they "attempted" to commit a crime that would be an indictable offence elsewhere. It is immaterial "how or where" the person commits the offence and the prosecutor proves that such conditions satisfy the conditions of an indictable crime in Victoria.

A person who stays outside Victoria or is not a resident of the State is also guilty of the offence if they attempt to commit an indictable offence within the State.

Penalties of Attempted Offences

There are severe penalties for a person guilty of Attempting to commit an offence. Usually, the penalties for Attempt offences are tied to the original crime. Section 321P of the Crimes Act 1958 (Vic) lists the penalty in a Table under column 1 or Column 2 offences.

The original offences are listed in the first column of the Code, while the corresponding punishments for Attempts are listed in column 2 of the Table.

While some of the punishments are rigidly stated in the Code, others are elicited from the standing penalties available for the reference offence. The court may also issue statutory sentences for other "Attempt" offences that do not fall in any of these categories.

Punishments for “Attempting” offences liable to Level 1 sentencing

Original offences that attract severe level penalties, one imprisonment (life term) would translate to a level 2 imprisonment (25 years maximum) term.

If the original crime attracts the term of a sentence reaching 25 years imprisonment, attempting the offence would result in sentencing of 20 years imprisonment (Level 3)

If the offence is also punishable by a level 2 fine (maximum of 3000 penalty units), the penalty for an “Attempt” offence will be a Level 3 fine (maximum 2400 penalty units).

If the Actual offence is one punishable by a level 3 sentencing (20 years maximum), the punishment for "Attempting" such an offence will be a level 4 sentencing (15 years maximum imprisonment).

Likewise, an offence punishable by a level 3 fine (2400 penalty units) will incur a level 4 fine (maximum 1800 penalty units).

And depending on the stipulated punishments for the original offence. It reaches as far down until a crime punishable by level 12 sentencing and incurs a base level 12 (1 penalty unit) fine in punishments.

Generally, the penalties for Attempt offences are usually a level down from the penalty for committing the actual crime.

As an example, s321P of the Crimes Act 1958 (Vic) explains that a person guilty of attempting to commit a Murder offence in Victoria or Treason by law is liable to a level 2 sentencing (25 years maximum imprisonment).

Conspiracy Offences

It is an offence for a person to be part of 2 or more people who agree or plan to commit an indictable offence. Section 321 of the Crimes Act 1958 (Vic) specifies the violation of conspiracy to include where the;

• ✔ Person intends to commit the offence.
• ✔ Intends that any circumstance, evidence or helping instruments will exist to aid them in carrying out the actions.

Subsection 3 of s321 of the Crimes Act maintains a person to be guilty of a conspiracy offence even if they are unaware of certain circumstances or facts relating to the offence/agreed course. Conspiracy Offences are treated equally even if they occurred outside Victoria as long as;

• ✔ The circumstances include those prohibited by the Victorian laws,
• ✔ One or more persons referred to inhabited Victoria while the agreement was on.

Penalties for Conspiracy

Section 321C of the Crimes Act 1958 (Vic) stipulates the penalty of a conspiracy offence to be a maximum of 15 years imprisonment (Level 4). However, if the conspiracy offence is regarding Murder or any form of treason, the punishments can be as severe as a level 1 imprisonment (life).

Incitement offences

Division 11 and section 321G makes it an offence to incite/lure/deceive/encourage/enable a person to engage in the course of conduct that will lead to an offence.

A person is guilty of incitement if they intend or believe in any fact or actions that will lead to an offence.

It is an offence that includes punishments as much as level 4 (15 years maximum) imprisonment. And a level 1 (life imprisonment) if it is for a murder or treason offence.

Will an attempted offence show up on a nationally coordinated criminal history check?

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

Individuals can obtain an Australian Nationally Coordinated Criminal History Check via the Australian National Character Check - ANCC® website.

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