Domestic Violence offence is now part of our Criminal Code

Domestic Violence whether the perpetrator is male or female, directed against a partner or in the worst scenario against children, in any form is not acceptable in our community.

Has the recent plethora of media attention supported or encouraged false claims to be made is another question?

MEDIA EXPOSURE

If one believes the media attention given to this issue there would appear to be an epidemic of domestic and family violence which all of sudden has swamped our society.

The government has accepted that this is so and in Queensland, the government set up a specific task force to report on the accountability of perpetrators of domestic and family violence and to afford protection for victims of domestic and family violence.

On the 28 February 2015, the special task force on Domestic and Family Violence (the task force) in Queensland released its report, “not now, not ever putting an end to domestic violence in Queensland”. The report contains several recommendations for reforms to criminal and related laws – in particular that:

1. The Queensland government make provisions in legislation for domestic and family violence-related convictions to be recorded, consistent with the approach adopted in New South Wales;
2. The Queensland government considers the efficiency of penalties to hold perpetrators to account for repeat contraventions of domestic violence orders;
3. The Attorney-General, in consultation with the Chief Magistrate and Chief Judge, implements alternative evidence procedures for victims of domestic and family violence providing evidence related to criminal matters to reduce the trauma of this experience, including legislative amendment and/or procedural changes. Consideration should be given to allowing for admissibility of any video recordings made at the time of initial police intervention.

The government response accepted these recommendations.

Following several recent very public domestic and family violence incidents, including deaths in south-east Queensland, the Queensland government committed itself to fast-tracking reforms to increase perpetrated accountability and enhance community protection against this form of violence.

On 1 December 2015, the Penalties and Sentences Act 1992 was amended to add a new section 12A which refers to a new definition of a ’domestic violence offence’ in the criminal code and puts into place the domestic violence offence notations scheme.

The aim of the legislation is to achieve objectives by:

1. Increasing maximum penalties for breaching domestic violence orders under the Domestic and Family Violence Protection Act 2012;
2. Enabling charges for domestic violence orders to indicate that they occurred in a domestic violence context and providing that convictions for domestic violence be noted on a person’s criminal history.

Amending the Evidence Act to ensure the availability of protection for special witnesses to apply to all victims of domestic violence.

This was in response to the alternate determination of the task force legislative reform which represented the best way of achieving the policy objectives that it proposed.

Is Domestic Violence Criminal?

The government when passing the Act determined that the legislation had sufficient regard to the rights and liabilities of individuals under the Legislative Standards Act 1992.

Clause 7 of the Act increases the maximum penalties as follows;

The Act amends the Domestic and Family Violence Protection Act, and increases the maximum penalties for breaches of domestic and family violence orders particularly it provides that the maximum penalty for a breach of a domestic violence order is:

1. In circumstances where the respondent has been convicted of an offence under the Act or another domestic and family violence offence within the previous five years to five years imprisonment;
2. Otherwise, the penalty is three years imprisonment.
3. The amendment increases the current maximum imprisonment terms by two years and one year respectively and doubles the maximum penalty units available in both cases. It also expands the circumstances in which the highest maximum penalty can be imposed to include convictions for any prior offences committed in a domestic and family violence context, not just those under the Act.

To assist with the process of identifying, “domestic violence offences”, the Act gave powers to the Court to order the previous criminal offences for example, assault causing bodily harm, be noted on a person’s criminal history as a “domestic violence offence”. There is also a provision for the Court to direct that notations be made on a person’s criminal history that previous convictions were committed in a domestic violence context if the Court is satisfied that is the case. This is retrospective legislation. Its aim is to assist in ensuring that an offender’s pattern of domestic and family violence behaviour is more easily identifiable on a person’s criminal history and therefore ensures that offenders can be sentenced more appropriately. The aim is to provide greater protection for victims against future violence through timely identification of this type of conduct by agencies to reduce escalated violence.

If a perpetrator is convicted of domestic violence offence after a trial or after a plea of guilt is entered the prosecution is able to apply to have previous offences on a person’s criminal history to be declared a domestic and family violence offences. The purpose of such an order is to have a person’s criminal history updated. If an order is granted it is not a breach of a previous matter and previous Court files will not need to be retrieved and updated. It is up to the prosecution to provide an Application form, supporting material and a draft Order to the Court. If an error occurs a Court on its own or by Application by any party can correct that error. A defendant can challenge an Application for previous offences to be declared as domestic and family violence offences.

To contact a lawyer and discuss your matter, please click here.