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24 Dec 2020

Our Criminal Law team’s  Naomi Sherrington and Fintan Roberts explore the new legislation relating to persistent family violence and the penalties that now can apply to those charged with such offences.

Domestic violence in article

Where police investigate offences of alleged domestic violence, there are a number of different charges that might be preferred. Some of those charges might be offences of violence applicable in any situation, including non-domestic/ family-related violence, and some offences arise from legislative provisions drafted to specifically apply to circumstances where the accused and the complainant are in a domestic or family relationship.

 

New family violence offence

A new charge of which to be aware is that of “persistent family violence”. Anyone convicted of this offence faces up to 14 years’ imprisonment.

In addition, the legislation allows an accused person to be charged with both this offence, and any of the prescribed offences said to constitute the “persistent family violence”; that is, the court can find a person guilty of (for example) aggravated assault AND persistent family violence, from the same alleged circumstances.

A person is said to engage in “persistent family violence” if – on three or more occasions in ten years – they do an act that would constitute a “prescribed offence” (e.g. an offence of violence or property damage).

Some of the more common offences of violence against another person include:

An assault is actual or threatened application of force to another, without their consent. It can be direct or indirectly applied. The types of offences where assault is an element include common assault, aggravated assault, or assault occasioning bodily harm.

  • Common assault is any application of force to another without their consent, regardless of whether any harm was done by that force (or threatened force). A charge of common assault attracts a maximum penalty of 18 months’ imprisonment and a fine of up to $18,000.
  • Assault in circumstances of aggravation (commonly referred to as aggravated assault) is any assault alleged to have been committed in prescribed circumstances of aggravation. It attracts a maximum penalty of 3 years’ imprisonment and a fine of up to $36,000. Note – circumstances of aggravation include where the accused is in a family relationship with the complainant; a child was present when the offence was alleged to have been committed; the commission of the alleged offence constitutes a breach of a restraining order; or where the complainant is of or over the age of 60 years).
  • Assault occasioning bodily harm is an assault that has caused injury amounting to “bodily harm”. Bodily harm is “any bodily injury which interferes with health or comfort”, and an offence against this provision attracts up to five years imprisonment (and seven, if any of the prescribed circumstances of aggravation above apply).
  • Serious assault is any assault where the complainant falls into a prescribed category. Those categories include public officers like police and ambulance officers, and other emergency service officers (and anyone acting in aid of such an officer); drivers of public transport; someone working in a hospital (and anyone acting in aid of such a worker); a court security or custodial/ prison officer.

A person found guilty of serious assault is liable to up to seven years’ imprisonment (and ten if they were armed or in company).

  • Suffocation and strangulation is a new charge, and anyone convicted of this offence is liable to 5 years’ imprisonment (or seven, if circumstances of aggravation exist). This offence is established by reference to the actions of the accused, rather than the harm caused. A person can be convicted of this offence is they unlawfully impedes another person’s normal breathing, blood circulation, or both, by blocking their nose, mouth, or both; or if they apply pressure on, or to, another person’s neck. This charge has a statutory alternative: even if that particular action is not established, the Criminal Code provides a statutory alternative of common assault – so the court can acquit an accused of strangulation/ suffocation, but convict them of common assault.
  • Grievous bodily harm (“GBH”) is an offence that is established where an accused has unlawfully caused another person injury amounting to “grievous bodily harm” (which is defined as “any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health”. Anyone found guilty of GBH is liable to imprisonment for 10 years (and 14 years in some prescribed circumstances).
  • There are also statutory alternatives to this offence.

How HHG Legal Group can assist

It is important to get sound advice from experienced, specialist lawyers. If you need guidance through these issues please contact our Senior Criminal Lawyer Naomi Sherrington on (08) 9211 2604.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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