New Laws on Crimes Committed Against Pregnant Women in NSW

Poppy Morandin and Jimmy Singh.

The death of a heavily-pregnant newlywed and her unborn twins has reignited discussion regarding the need to recognise pregnancies lost as a result of an offender’s criminal acts against the mother.

NSW Premier Gladys Berejiklian and Attorney-General Mark Speakman have released draft laws for public consultation, that would increase the maximum penalty for the relevant offence against a pregnant woman which has caused the destruction of the foetus, by an additional 3 years imprisonment.

For example, instead of the applicable maximum penalty for dangerous driving occasioning death being 10 years in jail (section 52A of the Crimes Act 1900 (NSW)), if the destruction of the foetus is caused, it would be 13 years.

The proposal creates a new penalty applicable to any crime committed against a pregnant woman if it results in the destruction of the foetus. If the foetus as a result is destroyed, it will be considered a “circumstance of aggravation” to the offence that was committed to cause this.

Coalition MPs and other advocates have claimed that the law is too ‘soft’ as instead of creating a separate and new offence, it would treat the death of a foetus as an aggravating factor of a crime against the mother.

The destruction of a foetus will remain a circumstance of aggravation whether or not the pregnant woman survives or loses her life, as a result of the act or omission that constitutes the relevant offence.

It will not be necessary for the prosecution to prove the defendant knew or should have known the woman was pregnant.

The Crimes Legislation (Offences Against Pregnant Women) Bill 2020 has come after years of debate surrounding the possibility of creating a new offence, sparked by the tragic stillbirth of NSW woman Brodie Donegan‘s daughter Zoe after Ms Donegan was hit by a driver under the influence of drugs on Christmas Day 2009.

The driver was sentenced to a minimum of nine months in prison.

“I’m grateful that Gladys (Berejiklian) is doing something, but it’s a cop out. She said two years ago in an election promise she would – address Zoe’s law and she’s only doing something now ­because she is mindful of her status in the polls,” said Mrs Donegan.

“Putting the loss of a baby’s life in the same category as broken bones isn’t good enough,” she continued.

Last year, the Crimes Amendment (Zoe’s Law) Bill 2019 was introduced into the state upper house by Christian Democrat leader Fred Nile in order to propose the creation of a new offence of grievous bodily harm to a foetus.

The NSW Parliament has debated various iterations of the legislation over the years.

If passed, that law would have meant that if someone caused destruction or harm to a foetus they would be charged with grievous bodily harm to the foetus, instead of being charged with grievous bodily harm to the pregnant woman.

The Crimes Legislation (Offences Against Pregnant Women) Bill 2020 came after the Premier pledged to introduce new laws, rather than support the Crimes Amendment (Zoe’s Law) Bill 2019.

Recently, urgency to amend the current law was reignited following the sentencing of an unlicensed drunk driver who crashed into a car at Orchard Hills in Sydney’s west at high speed, killing two young women, one of whom was days away from giving birth to twins.

23-year-old Katherine Gordon was sitting in the back-passenger seat, whilst a 17-year-old female relative on her learners permit drove.

Ms Gordon’s husband, Bronko Hoang was sitting in the front passenger seat and survived the crash, yet suffered severe complications, including a brain injury.

The offender, 31-year-old Richard Moananu, was driving at around 112km/h in a 60km/h road works zone when he hit the median strip, subsequently becoming airborne and colliding head-on with the victims’ car.

Penrith District Court heard how Moananu had been drinking at a hotel in St Mary’s from 10am to 6.45pm, before getting behind the wheel.

He was four times over the legal limit.

Moananu pleaded guilty to two charges of manslaughter and one charge of aggravated dangerous driving occasioning grievous bodily harm.

Judge Buscombe sentenced Moananu to a maximum of 15 years behind bars with a non-parole period of 10 years, indicating that he will be eligible for parole in 2028.

“The fact that Gladys has looked at taking into account their lives in sentencing a convicted motorist is one step forward and for me right now that’s enough.” said Mr Hoang.

Currently in NSW, violence to a foetus which causes death in utero does not amount to murder or manslaughter as a foetus is not treated as a human being.

Section 20 of the Crimes Act 1900 (NSW) stipulates that a child shall be held to have been born alive if it has breathed and has been wholly born into the world, whether it has had an independent circulation or not.

However, if an assailant destroys or intends to destroy a foetus, they may be charged with an offence covering the infliction of ‘grievous bodily harm’.

Under the Crimes Act, ‘grievous bodily harm’ includes the destruction (other than during a medical procedure or lawful abortion) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.

Grievous bodily harm also includes permanent or serious disfiguring of the person or any grievous bodily disease. Courts have come to consider it as ‘any really serious injury’ (Kbayli [2017] NSWDC 197).

A person who causes grievous bodily harm with intent to do so, faces a maximum penalty of 25 years in jail, pursuant to section 33 of the Crimes Act.

Women’s advocacy groups have asserted that injury should always be interpreted as an injury to the pregnant woman.

This is partly due to the way in which the creation of an offence for destruction of a foetus may create undue scrutiny on women who experience a miscarriage, stillbirth, or foetal harm as a result of a criminal act.

Have a question? call our Sydney criminal lawyers to arrange a free confidential consult today.

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