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New Domestic Violence Legislation in Queensland

Following the release on 28 February 2015 of the report of the Special Taskforce on Domestic and Family Violence, the Queensland government began implementing a raft of changes to domestic violence legislation and policy.

The first wave of amendments was passed on 15 October 2015; the second received assent on 17 December 2015. Now, a new Bill has been presented to Parliament and is due for debate early in the new sitting year. While not yet law, it is useful to consider the effect these provisions will have on existing legislation and procedures.

Domestic violence law in Queensland

Background

The report of the Special Taskforce on Domestic and Family Violence (the Taskforce), ‘Not Now, Not Ever: Putting an End to Domestic Violence in Queensland’ (the Report), contained a considerable number of recommendations for the Queensland Government. Those which drew priority were that:

  • the Government amend the legislation so that offences committed in the context of domestic and family violence be recorded as such;
  • the Government reconsider the penalties applied to repeat offenders; and
  • the Attorney-General, Chief Magistrate and Chief Judge work together to develop alternative evidentiary procedures to reduce the risk of further trauma to victims of domestic and family violence, such as allowing video recordings of police responses to violence into evidence.

Since the release of the report, there has been a number of high-profile cases of domestic and family violence in Queensland, some of which have resulted in a homicide, prompting the Government into action.

Implemented amendments to domestic violence legislation – Stage 1

The October 2015 amendments

The first raft of changes to domestic violence legislation was passed in the form of the Criminal Law (Domestic Violence) Amendment Act 2015 on 15 October 2015. A number of the provisions commenced on the date of assent (22 October 2015); however, to allow time for transition, others commenced on 1 December 2015.

Those that commenced immediately were:

  • a new definition of ‘domestic violence offence’ added to s 1 of the Criminal Code;
  • increased penalties for contravention of a domestic violence order in s 177 of the Domestic and Family Violence Prevention Act 2012 (DFVPA);
  • replacement of s 181 of the DFVPA relating to the prosecution of offences under the Act;
  • amendment of s 182 of the DFVPA relating to the commencement of summary proceedings; and
  • amendment of s 21A of the Evidence Act 1977, which involves evidence of special witnesses.

Those that commenced on 1 December 2015 were:

  • the addition to both the Justices Act 1886 and the Penalties and Sentences Act 1992 (P&SA) of a definition of ‘domestic violence offence’ (pointing back to the amended Criminal Code s 1);
  • amendment of s 47 of the Justices Act 1886 relating to the sufficiency of the description of the offence, and to s 48 regarding the amending of a complaint;
  • amendment of the P&SA to include s 12A regarding convictions for offences relating to domestic violence, and to alter the regulation-making power in s 196;
  • amendment of ss 564 and 572 of the Criminal Code regarding the form of an indictment and amending an indictment.

Amendments to the Criminal Code – 'domestic violence offence'

Section 1 of the Criminal Code now includes a definition of ‘domestic violence offence’. The definition reads:

domestic violence offence means an offence against an Act, other than the Domestic and Family Violence Protection Act 2012, committed by a person where the act done, or omission made, which constitutes the offence is also –

(a) domestic violence or associated domestic violence, under the Domestic and Family Violence Protection Act 2012, committed by the person; or

(b) a contravention of the Domestic and Family Violence Protection Act, section 177(2).

Note –

Under the Domestic and Family Violence Protection Act 2012, section 177(2), a respondent against whom a domestic violence order has been made under that Act must not contravene the order.

The effect of this definition is to render any offence which occurs in the context of domestic or family violence to be labelled as a ‘domestic violence offence’. The consequences of this definition will be seen shortly.

Amendments to the Criminal Code – indictments

Amendment of s 564 (form of indictment) involved the addition of subsection (3A) which allows for the documentation of an offence named on an indictment as having involved domestic or family violence:

(3A) An indictment for an offence may also state the offence is a domestic violence offence.

Note— Under the Penalties and Sentences Act 1992, section 12A, if a person is convicted of an offence that the court is satisfied is also a domestic violence offence, the court must order the conviction also be recorded as being for a domestic violence offence or, if no conviction is recorded, entered in the person’s criminal history as a domestic violence offence.

Section 572 (amendment of indictments) now includes a new subsection (1A) which, in effect, allows the court to amend the indictment if there is evidence that it has occurred in the context of domestic or family violence:

(1A) Without limiting subsection (1), if the court considers the offence charged in the indictment is also a domestic violence offence, the court may order that the indictment be amended to state the offence is also a domestic violence offence. 

Amendments to the DFVPA – contravention of protection order

The amendments to the DFVPA became effective on the date of assent.

Section 177 (contravention of a domestic violence order) now prescribes more serious penalties in the event of a breach of a protection order. The standard maximum penalty now stands at 120 penalty units (currently $14,136) or 3 years imprisonment. However, if the offender has within the previous 5 years been convicted of a domestic violence offence, the maximum penalty for breaching a protection order increases to 240 penalty units ($28,272) or 5 years imprisonment.

The section also points back to the Criminal Code for a definition of ‘domestic violence offence’:

(2)  The respondent must not contravene the order. Maximum penalty—

(a) if, within 5 years before the commission of an offence against this subsection, the respondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment; or

(b) otherwise—120 penalty units or 3 years imprisonment.

(7)  In this section— domestic violence offence means—

(a) a domestic violence offence within the meaning of the Criminal Code, section 1; or

(b) an offence under this part.

Amendments to the DFVPA – prosecution of offences

Section 181 which relates to the prosecution of offences has been largely rewritten. Previously, it stated that all offences under the Act were to be dealt with summarily and that a police officer must be the one to lay a complaint. Now, it declares offences attracting a penalty of over 3 years imprisonment to be indictable, though most are still to be dealt with summarily.

The jurisdictional limitations of the Magistrates Court are recognised in that the maximum possible sentence for a case heard summarily is still 3 years imprisonment. Matters must be referred to a higher court if:

  • it involves an indictable offence, and
  • submissions have been heard from both the prosecution and the defence, and
  • having regard to the nature or seriousness of the offence, or anything else considered relevant regarding the defendant, the maximum penalty that could be applied on summary conviction would be inadequate, or
  • the defence can satisfy the court that, due to exceptional circumstances, the charge is more appropriately dealt with in a higher court.

If the Magistrates Court abstains from hearing a matter, they must immediately treat the proceeding as a committal proceeding, disregard any plea entered by the defendant, and consider evidence already submitted to be evidence in the committal proceeding. The Court must then follow the procedure set out in s 104 Justices Act 1886 in relation to the examination of a witness.

The new s 181 states:

181 Prosecution of offences

(1)  This section applies to offences against this Act.

(2)  An offence that has a maximum penalty of more than 3 years imprisonment is an indictable offence.

(3)  A proceeding for an offence that is not an indictable offence is by way of summary proceedings under the Justices Act 1886.

(4)  Subject to subsection (6), a proceeding on a charge for an indictable offence must be heard and decided summarily.

(5)  The maximum term of imprisonment that may be imposed on a summary conviction of an indictable offence is 3 years imprisonment.

(6)  A Magistrates Court must abstain from dealing summarily with a charge for an indictable offence—

(a) if satisfied, at any stage, and after hearing any submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction; or

(b) if satisfied, on an application made by the defence, that because of exceptional circumstances the charge should not be heard and decided summarily.

(7)  If the court abstains from jurisdiction—

(a) the court must stop treating the proceeding as a proceeding to hear and decide the charge summarily; and

(b) the proceeding for the charge must be conducted as a committal proceeding; and

(c) the defendant’s plea at the start of the hearing must be disregarded; and

(d) the evidence already heard by the court must be taken to be evidence in the committal proceeding.

(8)  The Justices Act 1886, section 104 must be complied with for the committal proceeding.

Amendments to the DFVPA – commencing summary proceedings

For s 182, previously, a proceeding for an offence under the DFVPA, which had to be heard summarily, must have commenced within 12 months of either the commission of the offence or from when the complainant became aware of the offence.

Now, the provision is necessarily restricted to matters heard summarily, and a limitation has been placed on the time frame in which a proceeding might commence after having come to the complainant’s knowledge.

A proceeding still has to commence within 12 months of the complainant becoming aware of the offence, but it must also be within 2 years of the commission of the offence.

The new s 182 reads:

182 When proceeding for offence to be heard summarily may be started

A proceeding for an offence against this Act that is to be heard in a summary way under the Justices Act 1886 must be started within—

(a) 1 year after the offence is committed; or

(b) 1 year after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.

Amendments to the Evidence Act 1977

Amendment of s 21A of the Evidence Act 1977 has involved the insertion of a definition of ‘domestic violence’, which points back to the DFVPA, and an addition to the definition of ‘special witness’. The effect is that all the protections afforded to a special witness in court are now afforded to a victim or alleged victim of domestic violence when they are giving evidence about the offender. ‘Special witness’ now includes:

(d) a person—

(i) against whom domestic violence has been or is alleged to have been committed by another person; and

(ii) who is to give evidence about the commission of an offence by the other person.

Amendments to the Justices Act 1886

Aside from the addition of a definition of ‘domestic violence offence’ which points back to the Criminal Code, two amendments were made to the Justices Act 1886.

The first relates to what amounts to a sufficient description of an offence under s 47. Inserted into the provision is a new subsection (9) which simply states that ‘A complaint for an offence may state the offence is also a domestic violence offence.’ It includes a note which states:

Note— Under the Penalties and Sentences Act 1992, section 12A, if a person is convicted of an offence that the court is satisfied is also a domestic violence offence, the court must order the conviction also be recorded as being for a domestic violence offence or, if no conviction is recorded, entered in the person’s criminal history as a domestic violence offence.

This initially seems quite a minor alteration, but when considered in light of the other amendments and the proposed amendments discussed below, it has the effect of enabling the courts, or even police, to easily identify the involvement of a perpetrator of domestic violence in prior acts of domestic violence, and could result in more severe penalties for the offender.

The second amendment to this Act relates to the capacity for the court to amend a complaint under s 48 so as to declare it as one of domestic violence. Again, this could have ramifications for the offender in the event of a further domestic violence offence. The amendment is included as a new subsection (2):

(2)  Without limiting subsection (1), if the justices consider the offence charged in the complaint is also a domestic violence offence but the complaint does not include a statement to that effect, the court may order that the complaint be amended to state the offence is also a domestic violence offence.

Amendments to the Penalties and Sentences Act 1992

The P&SA has also been amended so as to point back to the Criminal Code for a definition of ‘domestic violence offence’. In addition, a new s 12A has been added, and an amendment made to s 196.

The latter involves a simple addition of subsection (2) which allows for the making of a regulation for recording convictions for, or adding to criminal histories, domestic violence offences. It states:

(2)  A regulation may prescribe matters relating to the recording of convictions for domestic violence offences, or the making of entries in criminal histories about domestic violence offences, including, for example, the way in which, and time within which, the records or entries are to be made.

The former is more complex. In effect, where an offender is convicted of an offence which is identified on the complaint or indictment as a domestic violence offence, and the court is satisfied that the offence was one of domestic violence, the court must order that the conviction, where recorded, is recorded as one of domestic violence, or that it is otherwise entered into the criminal history of the offender.

If the offender is convicted of the offence, and it is recorded or entered on the offender’s history as a domestic violence offence, or if the offender is convicted of any offence against the DFVPA, the prosecution is then able to apply to the court, orally or in writing, to have the offender’s prior records amended so that any previous conviction for an offence which involved domestic violence is explicitly retrospectively recorded as such. In such an application, the victim is not a compellable witness.

Alternatively, if the court believes an error has been made in the recording of a prior conviction in that it should be declared a domestic violence offence, they may correct the error.

Implemented amendments to domestic violence legislation – Stage 2

The 17 December 2015 amendments

The amendments to which assent was given on 17 December 2015 and which are applicable here involved the DFVPA.

Cross-applications

The changes to the DFVPA flowed from three recommendations of the Taskforce. The first relates to the hearing of cross-applications for protection orders. When the Report was issued, a court could hear cross-applications at the same time, although it was not mandatory. The Taskforce was concerned that the primary offender was not being identified in such cases, causing difficulties in relation to enforcement, and that the applications were being used as a tool for delay or frustration of the process.

The new legislation requires cross-applications be heard together and that any later application is determined in the context of the existing order, unless there are concerns as to the safety and wellbeing of one of the parties. If the applications are heard separately, the court will have to provide reasons for the decision. In addition, if a hearing is adjourned, the court must determine whether to issue a temporary protection order. For any subsequent applications involving the same parties, the court must consider prior orders and associated court records to enable the identification of the person most in need of protection.

The provisions are lengthy and will not be set out in full here.

Protection orders

The second area of amendment in this legislation relates to the inclusion in protection orders of an ouster condition to exclude the respondent from the family home (involving amendments to ss 57 and 64, and a minor numbering amendments to s 62). Previously, the court could consider including such a condition, whether an application was made or not. Now, it is mandatory for the court to consider its inclusion in all temporary and final protection orders. The court must take the views of the victim into consideration should they wish to make them known, but the decision is left to the court’s discretion. If the victim does not express their views, the court must not take this to mean they do not have views about the imposition of the condition.

These amendments are to be followed up later with provisions which require police to assist women and children to stay in situ as long as it is safe to do so, and provisions designed to encourage operators of crisis accommodation facilities to target perpetrators of domestic violence rather than just victims.

57 Court may impose other conditions

(1)    …

(2)    Without limiting subsection (1), a court making a domestic violence order must consider whether to impose an ouster condition on the respondent in relation to the aggrieved’s usual place of residence.

(3)    …

 

64 Ouster condition relating to aggrieved’s usual place of residence

(1)    DELETED

(1)    [NEW] In deciding whether to impose an ouster condition on the respondent in relation to the aggrieved’s usual place of residence, the court must consider, in addition to the matters mentioned in section 57, the following— …

(b)   any views or wishes expressed by the aggrieved about imposing an ouster condition on the respondent in relation to the aggrieved’s usual place of residence; 

[remaining subsections renumbered]

(2)    The fact that the aggrieved does not express any views or wishes about the condition mentioned in subsection (1)(b) does not of itself give rise to an inference that the aggrieved does not have views or wishes about the condition being imposed.

Victim impact statements

The third area of amendment relates to the introduction, and mandatory consideration, of victim impact statements in all applications for protection orders. The primary purpose is to ensure that victims feel they are being heard. This is implemented through the amendment of s 4 DFVPA – principles for administering the Act (amendments in bold font):

4 Principles for administering Act

(1)    …

(2)    Subject to subsection (1), this Act is also to be administered under the following principles— …

(b)   to the extent that it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision affecting them is made under this Act;

[remaining subsections renumbered]

Appeals process

Several amendments have also been made to the appeals process (involving ss 164, 165 and 166). An aggrieved person can now appeal against a decision of the court to refuse a temporary protection order (s 164(d)).

Appeals are to be filed with the registrar of the court, rather than the clerk of the court (s 165(1)), and the appellant must now file a copy of the notice in the court which made the decision they wish to appeal (s 165(2)).

Several definitions (in the schedule to the Act) have been updated or added. The most significant is the definition of ‘local Magistrates Court’ which has been updated to allow a respondent to attend the courthouse of the district in which they were taken into custody or where a police protection notice was issued.

Once again, these amendments apply to any application to make or vary an application for an order even if proceedings began prior to the date of commencement (involving minor amendments to ss 195, 208, new 215).

These provisions are lengthy and will not be set out in full here.

Proposed amendments to domestic violence legislation

Presented Bill

The proposed amendments to domestic violence legislation set to be debated in parliament in early 2016 have been presented as the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015. This Bill again involves amendments to the Criminal Code and the P&SA, but also to the Youth Justice Act 1992.

Proposed amendments to the Penalties and Sentences Act 1992

If the Bill is passed in its current form, new subsection (10A) will be inserted into s 9 of the P&SA. This subsection, incorporated into the guidelines for sentencing, provides that, in considering an appropriate sentence, where the offence was one of domestic violence, the court is to treat this as an aggravating feature for sentencing. It reads:

(10A) In determining the appropriate sentence for an offender convicted of a domestic violence offence, the court must treat the fact that it is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

Examples of exceptional circumstances

1  the victim of the offence has previously committed an act of serious domestic violence, or several acts of domestic violence, against the offender

2  the offence is manslaughter under the Criminal Code, section 304B

Proposed changes to s 15 involving information on sentence also bear quite significant ramifications as they allow for any party to the proceedings to make a sentencing submission, defined as a submission ‘stating the sentence, or range of sentences, the party considers appropriate for the court to impose’. This change would apply, by virtue of the new s 239, to sentences for offences or convictions which predate commencement of the provision.

The amendment is worded somewhat awkwardly, but the effect is clear. The new s 15 would state (new elements in bold font):

15 Information or submissions for sentence

(1)  In imposing a sentence on an offender, a court may receive any information, including a report mentioned in the Corrective Services Act 2006, section 344, or a sentencing submission made by a party to the proceedings, that it considers appropriate to enable it to impose the proper sentence.

(2)  An authorised corrective services officer must not, in any information or report, recommend that a fine option order or community based order should not be made for an offender merely because of—

(a) any physical, intellectual or psychiatric disability of the offender; or

(b) the offender’s sex, educational level or religious beliefs.

(3)  In this section –

sentencing submission, made by a party, means a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose.

The new s 239 states:

239 Sentencing submissions

The amendments made to section 15 by the Criminal Law (Domestic Violence) Amendment Act (No 2) 2015 apply in relation to sentencing an offender even if the offence or conviction happened before the commencement.

Proposed amendments to the Youth Justice Act 1992

The changes to the Youth Justice Act 1992 are similar in effect to the changes to the P&SA. For reasons which are not clear, subsection (3) is set to be deleted and replaced with new subsection (4A). It is in the same awkward language, and has the same effect, as the P&SA in terms of allowing any party to the proceedings to make a sentencing submission.

A new subsection (6) defines ‘sentencing submission’ in identical terms to the P&SA amendment.

The new s 150 states (in part – amendments in bold font):

150 Sentencing principles

(1)  In sentencing a child for an offence, a court must have regard to— 

(3)  In sentencing a child for an offence, a court may receive any information it considers appropriate to enable it to impose the proper sentence or make a proper order in connection with the sentence. OMITTED

(4)  If required by the court for subsection (1)(g), the representative must advise the court whether—

(a) any member of the community justice group that is responsible for the submission is related to the offender or the victim; or

(b) there are any circumstances that give rise to a conflict of interest between any member of the community justice group that is responsible for the submission and the child or victim.

(4A) In sentencing a child for an offence, a court may receive any information, or a sentencing submission made by a party to the proceedings, it considers appropriate to enable it to impose the proper sentence or make a proper order in connection with the sentence.

(5)  This section overrides any other Act or law to the extent that, in sentencing a child for an offence, the court must not have regard to any principle that a detention order should be imposed only as a last resort.

(6)  In this section—

sentencing submission, made by a party, means a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose.

The Bill also adds a provision, s 368, which states that the amendments to s 150 are to apply to offences or convictions which predate its commencement. It reads:

368 Sentencing submissions

The amendments made to section 150 by the Criminal Law (Domestic Violence) Amendment Act (No 2) 2015 apply in relation to sentencing a child even if the offence or conviction happened before the commencement.

Proposed amendment to the Criminal Code

The proposed amendments to the Criminal Code are the most significant amendments to date. A new offence is set to be introduced for ‘choking, suffocation or strangulation in a domestic setting’. This provision arises as a result of the Taskforce’s commentary as to the prevalence of choking or strangulation in domestic violence cases. It is not just an act of violence but is often also a predictor of escalating violence leading, in some cases, to homicide.

The provision carves out this particular type of violent action from other forms of assault. It explicitly excludes assault as an element of the offence so that defences to assault-based offences like provocation cannot apply.

It excludes consensual behaviour, and is limited to a domestic environment, so that these same actions undertaken in, for example law enforcement or sport, will not be caught up in the offence. It is also declared to be ‘associated domestic violence’ for the purposes of the DFVPA, and attracts a maximum penalty of 7 years imprisonment.

The provision, proposed as s 315A, states:

315A Choking, suffocation or strangulation in a domestic setting

(1)  A person commits a crime if—

(a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and

(b) either—

(i) the person is in a domestic relationship with the other person; or

(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.

Maximum penalty—7 years imprisonment.

(2)  An assault is not an element of an offence against subsection (1).

Conclusion

It remains to be seen whether these proposals make their way into law given the current political climate and the tenuous hold the Labor Party has on government. However, domestic violence has been featured heavily in recent media and news reports so it is possible they will garner sufficient support, though some amendment might occur.

This article reflects the state of the law as at 22 December 2015. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.

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