38GAAggravated offences

38GA Aggravated offences

(1) A person commits an aggravated offence against a provision of this Part if the conduct the person engaged in that constituted the offence: (a) was fishing that involved a primary commercial fishing vessel or a dory; or (b) was navigating a vessel that is a ship within the meaning of the zoning plan for the zone in which the vessel was being navigated; or (c) resulted in: (i) the taking of or injury to an animal or plant that is a member of a protected species; or (ii) serious harm to the environment in the Marine Park (see subsection (7)); or (d) had the potential to result in serious harm to the environment in the Marine Park (see subsection (8)); or (e) was done for a commercial purpose.

Note: For subparagraph (c)(i), see also subsection (9).

(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence. (3) In order to prove an aggravated offence, the prosecution must prove the following: (a) if paragraph (1)(a) applies—that the defendant was reckless as to whether the conduct he or she engaged in was fishing; (b) if paragraph (1)(b) applies—that the defendant was reckless as to whether the conduct he or she engaged in was navigating a vessel; (c) if paragraph (1)(c) applies—that the defendant was reckless as to whether the conduct he or she engaged in had the result referred to in paragraph (1)(c); (d) if paragraph (1)(d) applies—that the defendant was reckless as to whether the conduct he or she engaged in had the potential to result in serious harm to the environment in the Marine Park; (e) if paragraph (1)(e) applies—that the defendant intended to engage in the conduct for a commercial purpose. (4) Strict liability applies to: (a) if paragraph (1)(a) applies—the physical element of circumstance, that the fishing involved a primary commercial fishing vessel or a dory; and (b) if paragraph (1)(b) applies—the physical element of circumstance, that the vessel is a ship within the meaning of the zoning plan for the zone in which it was being navigated; and (c) if subparagraph (1)(c)(i) applies—the physical element of circumstance, that the animal or plant is a member of a protected species.

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) If, in a prosecution for an aggravated offence against a provision of this Part, the trier of fact: (a) is not satisfied that the defendant has committed an aggravated offence against that provision; and (b) is satisfied beyond reasonable doubt that the defendant has committed an offence against that provision; the trier of fact may find the defendant not guilty of the aggravated offence but guilty of an offence against that provision. (6) For the purposes of paragraph (1)(b), navigate includes moor, or anchor, in the course of navigation. (7) In determining for the purposes of subparagraph (1)(c)(ii) whether conduct has resulted in serious harm to the environment in the Marine Park, have regard to the following: (a) the harm; (b) the size of the affected environment; (c) the sensitivity of the affected environment; (d) the significance of the affected environment; (e) the management objectives contained in the zoning plan for the zone in which the person engaged in the conduct; (f) whether the harm is irreversible; (g) the measures required to remedy the harm. (8) In determining for the purposes of paragraph (1)(d) whether conduct had the potential to result in serious harm to the environment in the Marine Park, have regard to the potential for the conduct to result in serious harm for the purposes of subparagraph (1)(c)(ii). (9) If: (a) a person commits an aggravated offence against subsection 38BA(1) in relation to an animal because of subparagraph (1)(c)(i) of this section; and (b) the animal is a member of: (i) a species in the genus Dugong (dugong); or (ii) a species in the family Cheloniidae (marine turtles); or (iii) the species Dermochelys coriacea (leatherback turtles); then the number of penalty units set out in the penalty for the aggravated offence is tripled. (10) If the prosecution intends to prove an aggravated offence and rely on subsection (9), the charge must also allege which subparagraph of paragraph (9)(b) applies in relation to the animal. (11) Strict liability applies to the physical element of circumstance mentioned in paragraph (9)(b) that the animal is a member of a species mentioned in that paragraph.