The law on this offence is found in section 44 of the Crimes Act 1900 (NSW) that states:
‘A person who is under a legal duty to provide another person with the necessities of life, and who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life,
is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person’.
The nature and elements of the what is a reasonable excuse were considered in Taikato v R (1996) 186 CLR 454 at 464. In that case it was held that what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the proviso to which the defence of “reasonable excuse” is an exception.
The maximum penalty for the charge of failure to provide necessities of life (Section 44 of the Crimes Act) can be punished with a prison sentence of up to 2 years (if heard in the Local Court) or up to 5 years (If heard in the District Court).
Please note these penalties are reserved for the worst kind of offending and are unlikely to be what you would receive.
In NSW, a court can impose any of the following penalties for a Failure to provide necessities of life charge.
· Full time Imprisonment
· Intensive Corrections Order (ICO)
· Community Correction Order (CCO)
· Conditional release Order (CRO) (ie: bond)
Since Failure to provide necessities of life offence is a criminal offence, the burden of proof lies on the Prosecution. The prosecution must prove each of the following matters beyond reasonable doubt being;
· You were legally liable to provide the victim with the necessities of life;
· You intentionally or recklessly neglected to provide the necessities of life to the victim.
· Your failure caused a danger of death or serious injury, or the likelihood of serious injury, to the victim.
· Your acts were without reasonable excuse.
· They will also need to prove that you were the person who committed the failure to provide necessities of life offence, and the serious injury or likelihood of the same.
Some of the possible defences available can include;
· If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue "Duress";
· If your actions were necessary to prevent a greater harm from occurring, you may have the defence of "Necessity".
· If you were defending yourself or another OR yours or another’s property you may have a Defence of Self-Defence. Many people misunderstand what the limits of Self-defence can be.
· It was not your legal duty; or
· The likelihood of serious injury was absent; and/or if there was an serious injury the cause was not related to the failure to provide the necessities of life; or
You had a reasonable excuse.
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