Further Changes to Family and Domestic Violence Laws Introduced in WA in 2021
Further changes to Family and Domestic Violence Laws introduced in WA in 2021
Following on from our previous article on the Family Violence Legislation Reform Act 2020, further changes in Western Australia’s family and domestic violence laws came into effect from 1 January 2021.
The changes followed from the introduction of new offences into the Criminal Code in October 2020 – Suffocation and Strangulation, and Persistent Family Violence.
A host of further changes came into effect in January 2021, including changes to the:
- Sentencing Act and Sentencing Administration Act;
- Bail Act;
- Restraining Orders Act;
- Road Traffic Administration Act; and
- Dangerous Goods Safety Act
One major change from January 2021 was the introduction of a new declaration into section 124E of the Sentencing Act: ‘Serial family violence offender declaration’
A declaration is a status that is imposed upon a person. An example of a declaration is a drug trafficking declaration.
Under section 124E of the Sentencing Act, a court convicting a person may declare a person to be a ‘serial family violence offender’ if following their conviction:
- The person has 2 or more convictions for prescribed offences that can only be heard on indictment, and at least two of those offences were committed on different days; or
- The person has 3 or more convictions for prescribed offences, and at least two of those offences were committed on different days.
The court may make a Serial Family Violence Offender declaration of its own initiative or following the prosecution making an application for a declaration to be made.
What is a prescribed offence?
A ‘prescribed offence’ is defined as a ‘family violence offence’. This means an offence where the offender and the victim are in a designated family relationship with each other at the time the offence is committed.
The offence must be an offence listed in section 4(1) of the Sentencing Act – which included offences contrary to the Restraining Orders Act and the Criminal Code.
A prescribed offence also includes:
- an offence in another jurisdiction which would be a family violence offence if it occurred in WA (including offences in other Australian States, a Commonwealth offence, and overseas offences); or
- an attempt to commit a family violence offence.
What previous convictions are considered when a declaration is being considered by the court?
Only convictions for prescribed offences, committed within a 10-year period, are considered. One or more of the convictions may be recorded by a court outside of WA, however at least one of the prescribed offences needs to have occurred in WA.
The victim of each offence may be, but does not need to be, the same person. Similarly, each conviction may be, but does not need to be, for the same offence.
An offence will not be taken into account if it was committed when the person was under 18 years of age.
What types of things are relevant to the court when it is deciding whether or not to make a declaration?
Section 124E also outlines factors that a court may consider when making a declaration. The list is not exhaustive and includes:
- The level of risk of committing a further family violence offence;
- The offender’s criminal record;
- The nature of the prescribed offences; and
- The content of any reports ordered, including expert opinion on the level of risk of reoffending.
How long does a declaration last for?
Once made, a Serial Family Violence Offender Declaration will remain in effect indefinitely.
This is the case unless:
- The declaration has been in effect for at least 10 years, and the court approves an application to cancel the declaration, or
- The court considers the matters that would apply when making the declaration in the first place, and is satisfied that the declaration need no longer apply, or
- One or more of the offender’s convictions for a prescribed offence (which were taken into account when making the declaration) are quashed or set aside – meaning that they have no longer committed at least 3 offences, or 2 indictable-only offences.
What are the consequences of a Serial Family Violence Offender Declaration?
There are a number of consequences flowing from the making of a declaration.
- The declaration will be in effect indefinitely;
- Disqualification from holding or obtaining a licence, permit or approval under the Firearms Act;
- Disqualification from holding or obtaining a licence, permit or authorisation to hold explosives under the Dangerous Goods Safety Act;
- Disqualification of an above licence, if held currently;
- Details of the declaration being known to the Commissioner of Police and Chief officer of the Dangerous Goods Safety Act; and
- Bail for a family violence offence may only be granted by a judicial officer and must be refused unless there are exceptional reasons why an accused should not be kept in custody.
What does the court consider when granting declarations?
- The number of grounding offences;
- The nature of the offences;
- The chronicity of DV offending;
- The offender’s attitude towards rehabilitation;
- Other influencing factors such as alcohol use;
- The offender’s attitude towards the declaration being granted – i.e. is it opposed or not; and
- Whether the offender’s court history suggest an overall attitude about violence/violence towards their partners.
What are the direct Consequences of the Declaration?
- Cannot hold or obtain a firearms licence, permit or approval, unless an exceptional circumstance exists (section 124G(1)(a), (2));
- Cannot hold or obtain an explosives licence, permit or authorisation, unless exceptional circumstances exist (section 124G(1)(a), (2));
- Existing licences of the above are cancelled (section 124G(1)(b);
- Details of the declaration are known to Police Commissioner and CO of Dangerous Goods Safety Act (section 124G(1)(c);
- Declaration in place indefinitely (Section 124F(2));
- Can only be cancelled if offender applies to have it cancelled after a minimum 10 years in operation, and the court is satisfied the declaration is no longer necessary (124F(3), (5)), or if the offences underlying the declaration are quashed and there are no longer a sufficient number of eligible offences; and
- A ‘Serious Offence Declaration’ may also be made under s97A of the Sentencing Act for the same offence (under the discretionary, not mandatory provisions).
What happens if an offender commits further domestic violence offences?
In relation to bail:
- Bail must be refused by police – and can only be granted by a judicial officer and must be refused unless exceptional circumstances exist (Bail Act s 3F(2)); and
- If bail is refused, bail need not be considered again unless new facts or circumstances arise or bail was not adequately considered the first time (Bail Act s 3F (3)).
In relation to sentencing:
- PSO and CBO must not be made, unless the court has considered whether to require electronic monitoring (Sentencing Act s 33HA, s 67A);
- If an ISO or a CSI may be imposed, court must consider electronic monitoring (Sentencing Act s 76A(1A), s 84CA(1A); and
- If the offender is sentenced to imprisonment for the offence – the court must declare that offence to be a serious violent offence (sentencing act s 97A(6) and (7)).
In relation to parole/release:
- When considering parole, the parole board must specifically consider imposing an order requiring the wearing of an electronic monitoring device and/or installation of electronic monitoring in their home (sentencing administration act s 30(2)); and
- Where a Re-entry Release Order or Post Sentence Supervision Order (a PSSO) is being imposed, the parole board must specifically consider imposing an order requiring the wearing of an electronic monitoring device and/or installation of electronic monitoring in their home (Sentencing Administration Act s 57(3), s 74G(2)).
Need Legal Advice?
If you are facing a Serial Family Violence Offender Declaration or any other family violence-related charges, you should contact an experienced criminal lawyer to get the best advice and representation for your case.
This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.
PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.