Document ID: chunk:federal_register_of_legislation:C2025C00131:section:38ga:p1
Version: federal_register_of_legislation:C2025C00131
Segment Type: section
Provision Reference: s 38GA (pt 1/2)
Character Range: 116896–119594

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