Is a Criminal Offence Considered More Serious If Motivated by Hatred or Prejudice?

Australian Women’s Soccer Captain Sam Kerr has found herself on the wrong side of the law in London, England after an alleged altercation with a taxi driver over a fare early last year.

The Matilda’s captain put in a stellar performance, scoring three goals against Liverpool in an FA Cup match on the afternoon of Sunday, 29 January 2023, before going out to celebrate with her teammates.

It is believed the verbal argument took place when she caught a cab back to her home in Twickenham the next morning. Police were called and it is alleged Ms Kerr became belligerent with attending officers.

She was charged by Metropolitan Police on 21 January 2024, nearly a year after the incident, with one count of ‘intentional harassment, alarm or distress’ which was ‘racially aggravated’. It is not known why it took so long the bring the charge against her.

She has pleaded not guilty and the case has been set down for a four-day hearing in Kingston Crown Court in February 2025.

Ms Kerr is presumed to be innocent until and unless she is proven to be guilty in a court of law.

The offence

Intentional harassment, alarm or distress is an offence under section 4A of the Public Order Act 1986 (UK) which carries a maximum penalty of 6 months in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. The defendant engaged in disorderly behaviour, or used words or engaged in behaviour displayed any writing, sign or other visible representation that was or were threatening, abusive or insulting, 
2. The defendant did so intentionally, and
3. The conduct cause any person alarm, distress or harassment.

The section makes clear that the conduct may be committed in a public or private place; however, the offence does not apply where it occurs inside a dwelling and the person who is harassed, alarmed or distress is within the same or another dwelling.

A legal defence to the charge is that the defendant was inside a dwelling and had no reason to believe the conduct would be heard or seen by anyone outside a dwelling. An additional defence is that the conduct was reasonable in the circumstances.

The circumstance of aggravation

It is alleged that the offence was ‘racially aggravated’ – which is a factor that can be lead to a more serious penalty in the event a defendant pleads or is found guilty.

In that regard, section 1 of the section 1 of the Crime and Disorder Act 1988 (UK) provides that an offence is racially or religiously motivated if:

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group, or

(b)the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

Can an offence in New South Wales be considered more serious if motivated by hate?

There is a provision in New South Wales law which makes clear that a criminal offence can be seen as more serious if it is motivated by hatred or prejudice.

This provision is contain in section 21A(2)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provides that an aggravating factor for the purposes of sentencing is where:

‘the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)’.

The offence of publicly threatening violence on certain grounds is a crime in NSW 

In addition to this, the Crimes Act 1900 (NSW) contains a specific offence against publicly threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity, or intersex or HIV/AIDS status is an offence. 

This offence is outline in Section 93Z, which states: 

 (1) A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence–

(a) the race of the other person or one or more of the members of the group,
(b) that the other person has, or one or more of the members of the group have, a
specific religious belief or affiliation,

(c) the sexual orientation of the other person or one or more of the members of the
Group,

(d) the gender identity of the other person or one or more of the members of the group,

(e) that the other person is, or one or more of the members of the group are, of intersex
Status,

(f) that the other person has, or one or more of the members of the group have, HIV or AIDS.

The maximum penalty for the offence is:

• 100 penalty units or imprisonment for 3 years (or both) for an individual, or
• 500 penalty units for a company.

The value of one New South Wales penalty unit at the time of writing is $110, which means the maximum fine for an individual is $11,000 and for a company is $55,000.

The law further outlines that in determining whether an alleged offender has committed an offence against this section, it is irrelevant whether the alleged offender’s assumptions or beliefs were correct or incorrect at the time that the offence is alleged to have been committed.

And, in determining whether an alleged offender has committed an offence against this section of intentionally or recklessly inciting violence, it is irrelevant whether or not, in response to the alleged offender’s public act, any person formed a state of mind or carried out any act of violence.

Importantly, all prosecutions under this section cannot commence without the approval of the Director of Public Prosecutions to ensure that the complaint and the evidence against a person meet the threshold required under the law.