(08) 9278 2575When Can You Be Charged With ‘Attempting’ To Commit A Crime?
In Western Australia, you can be charged in circumstances where you haven’t yet committed an offence. All criminal offences in WA have a potential ‘attempted’ version, which somebody may be charged with if they have tried to commit an offence but failed.
The following explains what counts as an attempt in WA, the key cases that draw the line between preparation and execution and the maximum penalties that apply in each case.
Defining An ‘Attempt’
An attempt to commit an offence in WA is defined under section 4 of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) which states that:
When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.
An ‘intention’ to commit an offence applies even in situations where (unbeknownst to the offender) it is impossible to commit the offence. For example, if a person tries to buy cocaine from an undercover police officer which (unbeknownst to the offender) is fake. An actual ‘intention’ must exist for an attempt; a person cannot merely be ‘reckless’ to an offence occurring.
An attempt will also apply where a person is prevented from committing the offence due to circumstances outside of their control. For example, if a person fires a shot at an intended victim with intent to kill but the bullet misses because the victim moves.
When Is An Act ‘More Than Merely Preparatory’?
To be an ‘attempt’, the actions by an offender must be more than mere preparation for an offence. A number of different but overlapping tests have been developed in the case law to determine what constitutes a 'more than mere preparatory' act.
In the 19th century case of R v Eagleton, the accused supplied underweight bread to a local Poor Law authority, but was discovered before he was paid. The Court held that there had been an attempt to obtain money by false pretences. It did so on the basis of two main tests. Firstly, the court stated that actions will be more than preparatory if there is only one “last act” for the commission of the offence to occur – in this case, receiving the money. Secondly, the court stated that acts which are “proximate” – that is, immediately connected – with the offence may constitute an offence. In this case, supplying underweight bread to obtain payment amounted to an attempt to obtain by false pretences.
Further, in the extraordinary mid-20th century case of R v Stonehouse, a politician faked his own death in order to receive payment under his life insurance policy. The court found this to be an attempt because he had “embarked upon the crime proper” by going through with the ambitious scheme, even though he had yet to receive the life insurance payment.
Finally, a recent example of an attempt was found in the case of NVX v The State of Western Australia [2022] WASC 407, where a FIFO worker twice offered to bribe a nurse $500 to record him as vaccinated while “squirting the vaccine out”. In this case, the Supreme Court held those acts were more than merely preparatory and upheld an attempted fraud conviction.
Penalties For An Attempt
The maximum criminal penalties for an attempt depend on the penalties attached to the principal offence that was attempted.
Section 552 of the Code states that, in relation to an attempt to commit an offence, if the principal offence is punishable by life imprisonment, the maximum for the attempt is 14 years.
However, where the maximum penalty is not life imprisonment, the maximum penalty is one-half of the maximum penalty for which the principal offence is punishable on indictment. For example, as aggravated burglary under section 401 of the Code carries a maximum sentence of 20 years imprisonment, the maximum penalty for “attempted aggravated burglary” would amount to one-half this value, or 10 years imprisonment.
Finally, for offences that are triable summarily (that is, can be heard in the lower courts and attract a lesser penalty), an attempted offence sentenced summarily attracts the lesser of the principal offence’s summary maximum or one-half of the principal offence’s indictable maximum. For example, fraud under section 409 of the Code carries a maximum sentence of 7 years imprisonment if the matter is heard and determined on an indictment in the District Court. If we were to half this, the maximum sentence for an attempt would be 3 years and 6 months imprisonment.
However, if the matter is tried summarily in the Magistrates Court, the maximum penalty for fraud is 2 years imprisonment and a fine of $24,000. As the summary maximum for fraud is less than the halved indictable maximum, the maximum penalty for attempted fraud tried summarily is 2 years imprisonment and a fine.
The Importance of Legal Representation
Being charged with an attempted offence in Western Australia is serious, even if the crime itself was never completed. The law around what counts as “more than merely preparatory” can be complex, and the penalties for an attempt can still be severe.
If you are facing a charge of attempting to commit a crime, it is crucial to seek advice from an experienced criminal lawyer who understands how these laws are applied in practice.
Andrew Williams is a highly experienced Criminal Lawyer and Barrister who can provide you with expert guidance and strong representation in relation to attempted offences and other criminal charges in Western Australia. He will work with you to protect your rights and pursue the best possible outcome for your case.
Call Now: (08) 9278 2575
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.
