A Bill has been introduced to the New Zealand parliament in order, we are told, to impose a 6 month gaol term for ‘people who assault emergency services staff’. Further ‘Drug or alcohol-induced impairment will no longer be deemed an excuse to avoid imprisonment’ (see Paramedic attackers could be jailed under new law Newstalk ZB (Online) 26 May 2018)). St John Ambulance (NZ) People and Capability Director Sue Steen is quoted as saying ‘… too few assault cases get to court. “This is based on the fact that our individual ambulance officers have to agree to pursue that prosecution, whereas this bill will put us in a much stronger position”.’
But what does the Bill say? The Bill is the Protection for First Responders and Prison Officers Bill (NZ).
A new offence
If passed the Bill will introduce a new s 189A to the Crimes Act 1961 (NZ). The new offence will say:
(1) Every one is liable to imprisonment for a term not exceeding 10 years who—
(a) intentionally injures a first responder or prison officer who is acting in the execution of their duty; or
(b) being reckless as to whether their conduct may lead to that result, injures a first responder or prison officer who is acting in the execution of their duty.
(2) In this section,—
first responder means—
(a) a constable (within the meaning of section 4 of the Policing Act 2008); or
(b) an emergency services worker (within the meaning of section 92(4) of the Health and Safety at Work Act 2015)
prison officer means an officer within the meaning of section 3(1) of the Corrections Act 2004; and includes a security officer within the meaning of that section.
The first things to note are that the 10 years is the maximum, not mandatory penalty.
Second, to be guilty of the offence a person must intend to injure the responder or officer. Under the definitions in the Crimes Act 1961 (NZ) ‘injure’ means ‘means to cause actual bodily harm’. Assault is the intentional application of force to another. In Collins v Wilcock  1 WLR 1172 at 1177, Goff LJ said:
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… “the least touching of another is anger is a battery.” The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
The effect is that everybody is protected not only against physical injury but against any form of physical molestation.
Because any touching is an assault it follows that not all assaults are accompanied by an intention to injure. Therefore the new section 189A(1)(a) will not apply to everyone who assaults a paramedic, constable, other first responder or prison officer, but only those that intend or want to cause injury.
The proposed s 189A(1)(b) makes reference to recklessness. That arises where an accused person realises the possible consequence of their action is the prohibited outcome, in this case injury to the paramedic etc. The test is subjective so the Crown would need to prove that the accused realised that the possible consequence of their action was injury to the paramedic etc. If the accused did not have that realisation, even if it was obvious to everyone else, they are not guilty of the offence (see R v Williams (1990) 50 A Crim R 213).
The section makes no reference to drugs and alcohol. A person who is affected by drugs and alcohol may ‘assault’ a person but not intend to cause injury or realise that possibility. If that is the case they will not be guilty of these offences as the Crown won’t be able to prove one of the essential elements of the offence.
In a comment to an earlier post, a correspondent said:
All paramedics understand that there are some circumstances where a person may not be in control of their actions, such as a person having an acute psychotic episode (for example hearing voices telling them to kill), or a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury.
Those people will still be ‘not guilty’ of any offence even if they do injure their responders.
With respect to penalty the Bill proposes a new section 85A of the Sentencing Act 2002 (NZ). The new section will say, emphasis added:
(1) This section applies if a court finds an offender guilty of an offence against section 189A of the Crimes Act 1961.
(2) The court must impose a minimum sentence of 6 months imprisonment unless, given the circumstances of the offence and the offender, a sentence of imprisonment would be manifestly unjust.
(3) If a court does not impose a sentence of imprisonment on an offender in accordance with subsection (2), it must give written reasons for not doing so.
Hardly a mandatory sentence at all. If one considers the decision in DPP v Warren and Underwood  VCC 689 (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) one can see that Her Honour may have felt that taking into account ‘the circumstances of the offence and the offender, a sentence of imprisonment would [have been] be manifestly unjust’ in which case the result in New Zealand, after the passage of this Bill, could be just the same as it was in Victoria before the passage of the Bill.
Amendment to the Summary Offences Act 1981 (NZ)
The final provision of the Bill will, if passed, amend s 10 of the Summary Offences Act 1981 (NZ). That Section currently says:
Assault on Police, prison, or traffic officer
Every person is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 who assaults any constable, or any prison officer, or any traffic officer, acting in the execution of his duty.
If this Bill passes this section will read:
Assault on first responder, prison officer, or traffic officer
Every person is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 who assaults any first responder, or any prison officer, or any traffic officer, acting in the execution of his duty.
(2) In this section, first responder means—
(a) a constable (within the meaning of section 4 of the Policing Act 2008); or
(b) an emergency services worker (within the meaning of section 92(4) of the Health and Safety at Work Act 2015).
As noted above, not every assault carries an intent to injure so this picks up assaults (the intentional application of force) where there is no intent to injure and no foresight of the possibility of causing injury. In this case the maximum (not mandatory) penalty is 6 months imprisonment.
People who are not ‘in control of their actions, such as a person having an acute psychotic episode … or a diabetic having a hypoglycaemic episode, or a person who has just suffered a traumatic head injury’ will also be ‘not guilty’ of this offence.
|What the article (Paramedic attackers could be jailed under new law) says the Bill will do:||What the Protection for First Responders and Prison Officers Bill (NZ) will actually do:|
|People who attack paramedics would automatically be jailed under tough new laws to be debated by Parliament.||People who intend to cause injury or are reckless about causing injury will be gaoled unless the judge finds that gaol sentence would be ‘manifestly unjust’.|
|A new bill proposes a mandatory minimum sentence of six months’ jail for assaults on all first responders, including paramedics and prison officers.||Only for assaults that are intended to, or where the accused realises they might, lead to injury and only where a gaol sentence is not ‘manifestly unjust’. Common assaults do not attract that penalty.|
|From mid-June, people who assault emergency services staff in the state will be jailed for six months.||See above.|
|Drug or alcohol-induced impairment will no longer be deemed an excuse to avoid imprisonment.||The Bill says nothing about drug or alcohol-induced impairment. Drug or alcohol-induced impairment may be relevant to the question of whether the accused had the requisite intention or foresight and may also be relevant in determining whether or not a gaol sentence is ‘manifestly unjust’. It would, necessarily, depend on all the circumstances.|
|“…too few assault cases get to court.
“This is based on the fact that our individual ambulance officers have to agree to pursue that prosecution, whereas this bill will put us in a much stronger position,” Steen said.
|The Bill doesn’t make any difference to that position. Individual officers will still need to make a complaint to police and cooperate with the prosecution. If they don’t want to do that, for whatever reason, the Crown will still have difficulties. The Crown can prove a case without the victim’s cooperation (if that were not the case, murder and child sexual assault could never be prosecuted) but the victim’s cooperation is often essential and a DPP will take into account the victim’s attitude when deciding whether or not there are reasonable prospects of success. This Bill will make no difference to that position.|
|“A 69-year-old man was this week sentenced to a year of intensive supervision plus reparations for indecently assaulting a Hamilton ambulance officer in March.”||In the absence of an intent to injure or foresight of injury (recognising that injury is actual bodily harm) this Bill, if passed, would not have any application in this case.|
Is it the case that ‘Actual Bodily Harm’ in NZ, has a greater level of injury than in NSW. In NSW, if a person is physically assaulted and that assault causes the person to bleed, that is considered to be ‘Actual Bodily Harm’. In fact, internal bleeding, such as a bruise or contusion has been successfully prosecuted as ‘Actual Bodily Harm’. S 60(2) of the Crimes Act 1900 (NSW) provides a maximum sentence of only 7 years imprisonment in NSW, in comparison to the NZ 10 year maximum.
So if a Police Officer, Ambulance officer or Emergency services officer were to suffer a black eye, bleeding nose, bloodied lip, this would incur a prison sentence. Whilst I agree with the spirit of the legislation as a means by which to protect Police and Emergency Services workers, I’m not sure that in practicality it can work.
Without going to the NZ case law I would predict that ABH in New Zealand means the same as it does in Australia. Do note that the proposed NZ offence is not made out by proof of ABH but by proof of an intent to cause, or foresight of the risk. of ABH. Because of that the alleged automatic penalty does not apply if the victim suffers ‘a black eye, bleeding nose [or] bloodied lip’ only if the victim intended that, or a similar, result.
And for those waiting for the Victorian reforms, I do note that the Premier has announced that the details will be worked out over the coming months – so don’t expect anything soon – see https://www.premier.vic.gov.au/wp-content/uploads/2018/05/180522-Laws-To-Be-Fixed-So-Jail-Means-Jail-For-Emergency-Worker-Attacks.pdf