Riot Offences and Penalties in New South Wales (NSW)

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In New South Wales, it is an offence for a person to take part in a riot. This form of civil disorder carries severe penalties for anyone the court convicts and is legislated in the Crimes Act 1900 (NSW). However, before the Court finds a person guilty of this crime, the prosecution must prove certain elements beyond a reasonable doubt.

Additionally, there are several defences available to a person accused of rioting.

This article will discuss what a riot is, the elements of this crime, the penalties, and the possible defences.

If an individual is convicted for a riot offence, the offence will show up as a disclosable court outcome (DCO) on a national police record check.

What is a Riot?

Generally, a riot is a type of public disorder involving a number of people lashing out in a violent, noisy, and uncontrolled way. This display of violence is typically against people, property, or authority.

Under Section 93B of the Crimes Act 1900 (NSW), a riot is where twelve or more people collectively use or threaten unlawful violence against other people or property for a common purpose. Such unlawful violence refers to any illegal or harmful conduct. For example, these acts could be kicking, punching, pushing, throwing objects, or damaging property.

In addition, these violent actions or threats must have been such that any reasonable person present at the riot would have feared for their safety. On the other hand, a common purpose is a specific issue or matter that each riot member wants to address.

A riot can take place in a private or public area. It also does not matter that no person other than the rioters were present at the time of the riot. All the Court will consider is the aggression and seriousness of the rioters. "Would an ordinary person have been afraid for their safety if they had been at the scene?" If the answer is affirmative, the act may be deemed a riot under the law.

For an NSW court to convict a person of a riot offence, the prosecution must prove the following matters:

• That the accused was one of the twelve or more people who were present together. This group of people must have all been present at the riot scene.
• These people collectively used or threatened to use violence. Note that words alone are not enough to constitute “unlawful violence”. It also does not matter whether or not the members of the group threatened or used unlawful violence simultaneously.
• Their conduct was for a common purpose. When determining if there was a common purpose, the Court will consider the actions of the entire group.
• Their actions were enough to cause a reasonable person present at the scene to fear for their personal safety.

The Difference Between a Riot and Affray

The offences of riot and affray are similar in various ways. Both crimes require more than one individual to show violent conduct enough to cause others around to fear for their safety. In both offences, the offender must intentionally cause or intend to cause damage or injury to another.

Therefore, they must have known that their actions could have instilled fear of instant physical violence in another person. It is irrelevant that nobody was present at the place of the riot or affray.

Like a riot offence, an affray can occur in both private and public places.

The significant difference between an affray and a riot is that the offence of riot requires the element of a common purpose. This difference means that for a civil disorder to be a riot, the group must have had a common purpose for their unlawful conduct. In addition, a riot involves at least twelve participants, while an affray can involve only two individuals.

The crime of affray falls under Section 93C of the Crimes Act 1900 (NSW), while the offence of riot is under Section 93B of the Act. According to this law, a person that the court convicts of affray is liable to ten years of imprisonment.

Violent Disorders vs. Riots

Like riots, violent disorders involve a group of people using or threatening unlawful violence enough to cause others to believe that their safety was at risk. In both offences, a victim does not need to be present at the scene of the disorderly conduct.

The primary difference between both crimes is that the gathering must have at least twelve persons to be a riot, while only three persons can make up a violent disorder. In addition, this group of individuals must also have a common purpose for it to be a riot.

Violent disorders are governed as a Summary offence by Section 11A of the Summary Offences Act 1988 (NSW). Under this law, the maximum penalty for the crime is ten penalty units or imprisonment for six months.

Which Court Will Hear a Riot Matter?

The crime of rioting is a Table 1 Offence. Therefore, the prosecution or the accused person can elect to take the case to the District Court. However, if neither party elects thus, the Local Court will handle the matter.

Penalties for Riot

There are several possible penalties for rioting in New South Wales. These punishments include:

According to Section 93B of the Crimes Act 1900 (NSW), a riot offender faces a penalty of up to 15 years imprisonment. Alternatively, the offender faces a maximum of two years in jail if the Local Court handles the matter. This punishment is the most severe and involves full-time confinement in a correctional facility.

This penalty involves the Court ordering the convicted person to comply with certain conditions. These requirements could be avoiding taking alcohol, attending treatment or counselling sessions, carrying out community service, or complying with a curfew.

Although the Court cannot impose this penalty as a standalone order, it may give it as a requirement of an Intensive Corrections Order (ICO). This condition typically serves as an alternative to full-time imprisonment. So rather than serving a sentence in jail, the convict serves it at their home. During the course of the detention, the offender will be under strict supervision and electronic monitoring.

This punishment involves doing unpaid work in the neighbourhood at a place the offender's probation and parole order specifies. Alternatively, this order may require the convict to take a course at a community centre. A probation officer must first assess an offender for suitability before being eligible for a CSO. NSW Law has, however, repealed this penalty in 2018 and replaced it with a Community Corrections Order (CCO).

This order requires a convict to meet certain conditions. Generally, these conditions include not committing any crime and appearing before the Court anytime the court demands. The Court may impose other conditions at its discretion or upon recommendation by the offender, juvenile justice officer, or community corrections officer.

This penalty (Good Behaviour Bond) involves the Court ordering an offender to be of good behaviour for a set time, a maximum of five years. This order typically comes with certain conditions the offender must keep to. It is, however, no longer a lawful punishment as the law repealed it and replaced it with a Community Corrections Order (CCO).

This order of the Court requires the convicted person not to commit any offence and to appear before it at any time the Court calls during the term of the CRO.

A suspended sentence is a jail sentence that the Court suspends when an offender enters a good behaviour bond. As long as the offender obeys the conditions of the bond, the jail sentence will not be effective. The Court can only give this punishment for imprisonment sentences of up to two years.

A fine is a fixed amount of money that an offender must pay as a punishment for breaking the law. The Court will usually consider the convicted person's financial situation and their ability to pay the fine before choosing the amount of the fine.

Under Section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court can dispose of the proceedings after convicting a person without imposing any other penalty.

Here, the Court, per Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), finds the accused person guilty but chooses to dismiss the matter without an additional penalty. Therefore, the offender will have no punishment and no criminal record for a Section 10 dismissal, although there was a finding of guilt.

Before giving this order, the Court will consider:

• The accused’s character, age, criminal history, health and mental condition;
• The circumstances surrounding the committing of the offence;
• The severity of the crime; and
• Any other factor that the Court thinks appropriate to consider.

Defences Available to a Riot Charge

Generally, the Court will not convict an accused if the prosecution fails to prove all the vital elements of the offence beyond a reasonable doubt. Therefore the accused may defend a riot charge by asserting that:

• They were not part of the rioting group
• There were less than twelve people in the group
• They did not use or threaten violence
• Their conduct would not have caused an ordinary person to fear for their safety.

Other defences include:

As per Section 418 of the Crimes Act 1900 (NSW), the Court cannot convict a person of a crime if the accused believed that the action was necessary to:

• Defend themselves or another person,
• Protect their property from an unlawful destruction, taking, or interference
• Prevent or stop the illegal deprivation of their liberty or that of another person,
• Hinder criminal trespass to their premises
• Remove a person that is criminally trespassing.

Using this defence, the accused person must also show that the conduct was a reasonable response under the circumstances.

This defence asserts that the accused took part in the riot due to another consideration and to prevent the occurrence of greater harm.

When raising this defence, the accused person must prove the following:

• Their actions were to avoid severe and irreversible consequences upon themselves or someone they needed to protect. The situation must have been serious enough to justify their actions. An example is where a person acts to prevent death or serious injury to themselves or some other person.
• They sincerely and reasonably believed that they were in a predicament of immediate peril. This immediate peril means that the situation or threat requires the accused to take urgent action to diffuse the situation or evade the threat.
• Their conduct was reasonable and proportional to the situation. This element means that the accused did not go beyond what was reasonably necessary to avoid the situation.

Successfully raising this defence will shift the onus of proof to the prosecution. The latter must then prove that the accused was not facing any immediate danger or that they acted unreasonably in the circumstances.

Under this defence, the accused person argues that they were forced, threatened, or intimidated to partake in the riot against their will. In asserting this defence, the accused must prove that:

• There was an actual threat. This threat may have been implied or expressly stated. It is irrelevant that the person threatening could not have carried out the threat. All that matters is that the accused genuinely believed the threat to be real.
• The threat was serious enough to justify the accused's actions. It must have been such that would have caused an ordinary person in the shoes of the accused to act similarly. The defendant must also show that they did not intend to carry out the act. Instead, the threat overrode their free will.
• The threat was continuing. This means that the accused must have had no opportunity to escape the threat.

Conclusion

The offence of rioting under Section 93B of the Crimes Act 1900 (NSW) carries severe penalties, up to 15 years in prison. The ripple effect of a conviction is also devastating. It could include difficulty in getting a job and other consequences. Therefore, anyone facing riot charges should consult with an experienced NSW criminal lawyer to possibly avoid conviction.

Will a Riot Offence show up on a Nationally Coordinated Criminal History Check?

If an individual is found guilty of a Riot offence, the offence will show up as a disclosable court outcome (DCO) on the results of their Nationally Coordinated Criminal History Check.

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

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