Charging for breach of protection order rather than underlying offence

12.92 There will be cases where a person breaches a protection order and the only charge available to police is breach of that order because no underlying offence has been committed—for example, if a person breaches a condition of an order not to contact the victim within a certain period of time of being intoxicated. However, where the breach of a protection order also amounts to a criminal offence, one issue for this Inquiry is the extent to which police are charging persons with breach of a protection order—an offence under family violence legislation—as opposed to any potential offence under state or territory criminal law—such as assault.

12.93 Dr Heather Douglas asserts that where family violence matters are charged, ‘it is overwhelmingly’ as a charge of breaching a protection order rather than one of the established criminal offences such as assault.[116] Based on her study of 645 court files related to prosecutions for breach of protection orders under family violence legislation and held at three Magistrates Courts in Queensland, she concluded that:

It is likely that many of the matters charged as breaches of protection orders examined in this study could have been charged as crimes of criminal assault or criminal damage among other matters … Although the criminal charge of breach of a protection order was initially developed to provide an alternative offence for those situations where it may be difficult to identify the elements and satisfy the burden of proof in relation to a more serious criminal offence, it would appear from the data in this study that the breach charge is the standard response to matters arising in the domestic violence context when an order is in place.[117]

12.94 As Douglas states, various ideological and practical ramifications are associated with charging a person for breach of a protection order as opposed to an underlying criminal offence. These include that:

  • such a preference may be interpreted as trivialising or minimising the offending conduct;
  • penalties for breach of a protection order are typically less than those associated with criminal offences such as assault, stalking or criminal damage;[118]
  • the charge for breach may often fail to reflect the seriousness of the offending conduct; and
  • there may be less particularisation in an accused’s criminal record resulting from the recording of an offence for breach as compared with another criminal offence, such as assault.[119]

12.95 It is difficult to determine from published court statistics whether there is a trend for offences for breach of protection orders to be typically prosecuted more often than applicable substantive underlying offences. To the extent that courts have published statistics in their annual reports of the number of proven offences or criminal matters lodged:

  • no distinction is made as to whether such offences or matters occurred in a family violence context or not; and
  • there is no indication of whether the alleged or proven criminal offence occurred in the context of a breach of an existing protection order.

12.96 For example, the Tasmanian Magistrates Court Annual Report of 2006–2007 indicates that there were 778 matters lodged concerning ‘breach of domestic violence’ orders in 2006–2007.[120] That report also indicates, for example, that there were 2,780 matters lodged concerning ‘acts intended to cause injury’ and 188 matters concerning ‘sexual assault and related offences’ in that period but it is unclear how many of these matters—if any—arose in a family-violence context.[121]

12.97 The Tasmanian Magistrates Court Annual Report of 2008–2009 does not contain separate statistics of the number of cases involving breach of protection orders—although there are statistics for offences against justice procedures such as breaches of suspended sentences, bails and bond.[122] That report also indicates that there were 2,519 matters lodged concerning ‘acts intended to cause injury’ and 106 matters concerning ‘sexual assault and related offences’ in that period but it is unclear how many of these matters—if any—arose in a family-violence context.[123]

12.98 Similarly, the Magistrates’ Court of Victoria Annual Report for 2008–2009 indicates that there were 3,097 proven offences for ‘breach intervention order’ in this period. That report also indicates that there were 4,234 proven offences for ‘unlawful assault’ for example, but it is not clear how many of these assault matters arose in a family-violence context.[124]

12.99 Where a person is charged and convicted for both breach of a protection order and any underlying offence, the Commissions have heard that any custodial sentences imposed are often concurrent—or partially concurrent—rather than consecutive. The Commissions also heard that where two offences are charged—such as breach of the protection order and the underlying offence—the court has flexibility to set different types of sentencing options tailored to meet the circumstances of the case.[125]

Submissions and consultations

Practical trends concerning charges

12.100 In the Consultation Paper, the Commissions asked in practice, where breach of a protection order also amounts to another criminal offence, the extent to which police in each state and territory are charging persons with breach of a protection order, as opposed to any applicable offence under state or territory criminal law.[126]

12.101 Responses to this question varied. Some stakeholders stated that practices vary, particularly according to the nature and extent of a breach.[127] For example, the Queensland Law Society stated that:

Sometimes police charge only with breach of a protection order which can, at times, minimise the effect of the offender’s behaviour. On other occasions, police charge the offender with the whole gamut of offences.[128]

12.102 Similarly, Women’s Legal Services NSW stated that:

In our experience it depends on the extent of the breach. Police in NSW vary in their practice across and within local area commands, however it is not uncommon for criminal charges for offences other than a breach of a protection order to also be laid.[129]

12.103 Other stakeholders submitted that police generally charge the breach of a protection order in addition to any other criminal offence ‘that has different elements but relates to the one incident’.[130] For example, the Victorian Government submitted that:

Victoria Police charges for any offences arising from breaches of intervention orders separately from the breach of the intervention order. This trend has increased since the introduction of the Code of Practice in 2004. In 2008–2009 there were 7790 breach offences recorded and nearly 4000 co-occuring offences linked to the breaches of family violence intervention orders. There has been a 22 per cent increase in offences arising from breaches of intervention orders since the introduction of the Code of Practice in August 2004 …

It is Victoria’s Police experience that it is often easier to prove a breach when police have found the offender breaching the order, but it has been more difficult in proving an assault beyond reasonable doubt as the police do not often witness the assault.[131]

12.104 Other stakeholders, however, submitted that police tended to lay charges for breach of a protection order as opposed to any applicable state or territory criminal offence.[132] The Northern Territory Legal Aid Commission submitted that this happened in the Northern Territory (NT) ‘to an excessive extent’.[133] Other legal service providers based in the NT also commented that their observations were that ‘police, particularly in Indigenous communities, were not always pressing assault charges in addition to breach charges’[134] and that prosecutors in the NT ‘tend not to proceed with both the assault charge and the breach’ as they are regarded as duplicating one another.[135]

12.105 Similarly, Women’s Legal Service, Queensland stated:

It is our experience (as reported in Heather Douglas’ research) that, unless [there is] very serious harm or damage, the police would usually just charge for the breach of the protection order, rather than the substantive charge.[136]

12.106 Stubbs observed that while she had no basis for answering this question, ‘research suggests that police too often fail to take any action on a breach’.[137] An Indigenous women’s family violence service also stated that it had observed ‘a tendency to not pursue a criminal charge where there is no serious harm to a victim, for example, where the victim did not need to seek medical attention’.[138]

Addressing concerns regarding practical trends in charging

12.107 In the Consultation Paper, the Commissions asked how best to address any identified practice of police preferring to lay charges for breach of a protection order, as opposed to any applicable underlying criminal offence, to ensure that victims’ experiences of family violence are not underrated.[139]

12.108 Most stakeholders suggested that any such practice could be addressed appropriately through non-legislative measures such as:

  • the education and training of police, including on the dynamics of family violence, and cultural awareness;[140]
  • increased resourcing for policing to hold those who breach protection orders accountable;[141]
  • directions to police to charge with both offences[142] or ‘reinforcing the need to consider both’[143] or making it clear that charges for breach or an underlying offence ‘should not be withdrawn on the basis of duplicity’;[144]
  • greater systemic support for the collection of evidence such as digital photographing, support for victims to make statements—‘given that charging is related to police perception of strength of evidence’;[145]
  • police guidelines that ‘require a superior officer to sign off that the offence was just a breach and not a criminal offence;[146]
  • ‘building in performance indicators for the police that deal with such issues’ as the fact is it is less work to bring an application for breach than to do the investigative work required for a substantive charge;[147]
  • requiring police to document why they have not pressed relevant criminal charges that were otherwise applicable;[148]
  • considering including in the criminal record of a conviction for breach of a protection order some detail about the breach;[149] and
  • better information recording and data capture.[150] For example, Women’s Legal Services Australia submitted that:

One of the ways that the issue of police preferring to lay charges for breach of a protection order as opposed to any applicable underlying criminal offences can be remedied is through the use of accurate record keeping. There are currently no desegregated data available as to the trend for offences for breach of protection orders—no distinction is made as to whether such offences occurred in a family violence context or not; and there is no indication of whether the alleged or proven criminal offences occurred in the context of a breach of an existing protection order. There should also be a system for obtaining desegregated data on domestic violence offences on the basis of gender, race etc.[151]

12.109 However, one stakeholder emphasised the need for police discretion:

The police do what they do for valid reasons. They are the investigating officers and at the scene.[152]

Better data capture

12.110 In the Consultation Paper, the Commissions proposed that state and territory courts, in recording and maintaining statistics about criminal matters lodged, or criminal offences proven, in their jurisdiction should ensure that such statistics capture separately criminal matters or offences that occur in a family-violence related context.[153]

12.111 This proposal was overwhelmingly supported.[154] For example, the Queensland Law Society supported it as ‘part of the desire to have meaningful and open statistics’,[155] and the Women’s Domestic Violence Court Advocacy Service Network stated that the separate capture of such statistics would allow those relating to domestic violence to ‘be easily identified’.[156]

12.112 One NT legal service provider gave the following justification for supporting the proposal:

In recent times women’s networks have been keen to draw to the public’s attention just how high the death rates from domestic violence are here in the Northern Territory, but deaths are not recorded in a way that provides a reliable statistical connection between domestic violence and death.[157]

12.113 Both National Legal Aid and Legal Aid NSW—in supporting the case for the separate capture of statistics on family-violence related offences—noted the provision in s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).[158] This section requires a court to direct that an offence be recorded on a person’s criminal record as a domestic violence offence if the court is satisfied that an offence in respect of which a person has pleaded or is found guilty, is a domestic violence offence.

12.114 However, one individual opposed the proposal without explanation,[159] and the Queensland Government noted that:

This information is not currently recorded on the court database in Queensland. The resourcing implications for the Queensland Government would need to be assessed before determining whether the Queensland Government is in a position to implement this proposal.[160]

Commissions’ views

12.115 There may be valid reasons why police only lay charges for breach of protection orders in circumstances where an underlying criminal offence may also have been committed—principally, but not exclusively, linked to an assessment of the adequacy of the evidence to support such a charge. Clearly, police cannot be directed to lay both types of charges in all cases. As one stakeholder emphasised, there needs to be some room to accommodate the proper exercise of police discretion.

12.116 However, the Commissions acknowledge the force of stakeholder concerns about the lack of police enforcement of protection orders, and the tendency—particularly in certain jurisdictions such as Queensland and the NT—for police to prefer to lay charges for breach of a protection order to the exclusion of other appropriate and available criminal charges. Such practices or tendencies undermine the efficacy of protection orders and potentially trivialise the criminal justice response to family violence. Accordingly, the Commissions consider that there is a compelling need for a range of measures to address these practices and tendencies.

12.117 First, the Commissions note stakeholder observations that police are sometimes not laying both charges for breach of a protection order and the underlying criminal offence, on the basis that they consider that the laying of both charges involves duplication. The Commissions consider that this issue should be addressed in police guidelines or codes of practice. Police should be given guidance that concerns about duplication should not be a reason for not charging an offender with both types of offences, and that courts in sentencing for both offences would apply the totality principle in assessing the appropriate sentences to be imposed. The totality principle has been described as a ‘limitation on excess’.[161] It ensures that an offender who is sentenced for multiple offences receives an appropriate sentence overall and not one that is ‘crushing’.[162] In particular, courts would consider whether sentences for breach of a protection order and for an offence underlying the breach should be served concurrently—that is at the same time; cumulatively—that is, one after another; or partly concurrently and cumulatively in order to reflect the total criminality of the conduct charged.

12.118 Police guidelines should also address the disadvantages of choosing to charge for breach as opposed to, or in addition to, an underlying criminal offence—including that there may be less particularisation in an accused’s criminal record resulting from the recording of an offence for breach as compared with another criminal offence, such as assault.

12.119 Further, the Commissions consider that the utilisation of specialised police trained in family violence is a critical measure necessary to address inappropriate police responses to family violence. In Chapter 32, the Commissions recommend that, as a minimum, each state and territory police force should ensure that: all police receive appropriate education and training consistent with the Australasian Policing Strategy on the Prevention and Reduction of Family Violence; foster specialised police units; victims have access to a primary contact person trained in family violence; and specially trained police have responsibility for supervising, monitoring or assuring the quality of police responses to family violence.[163] The implementation of this recommendation should go a considerable way to addressing concerns about inappropriate police responses to breach of protection orders. In particular, having specially trained police responsible for assuring the quality of police responses to family violence will encompass responsibility for ensuring that breaches of protection orders are taken seriously and, that where appropriate, charges for underlying criminal conduct constituting the breach are also laid.

12.120 In addition, ensuring accountability for police decision making in family violence matters is also addressed in the recommendation the Commissions make in Chapter 9 about the need for either family violence legislation and/or police codes of practice to impose a duty on police to investigate family violence where it has been committed, to record when they decide not to take further action, and their reasons for not taking further action.[164] The implementation of this recommendation will require police to investigate breaches of protection orders, and to record when they decide not to take further action, and their reasons for doing so.

12.121 Finally, the Commissions consider that victim support has a critical role to play in ensuring that victims feel comfortable about initially giving evidence and not later withdrawing evidence that corroborates the pressing and prosecution of charges concerning protection orders, as well as underlying offences, such as assault, that may have constituted such breaches. In Chapters 29 and 32, the Commissions make a number of recommendations about integrated responses to family violence and the development of specialised family violence courts, which incorporate elements of victim support,[165] as well as mainstreaming victim support into courts that deal with family violence.[166] The implementation of these recommendations—combined with those concerning appropriate police guidelines; police specialisation, training and education; and measures to increase police accountability in decision-making—should ensure, to the maximum extent possible, that police bring appropriate charges where there is a breach of a protection order, and that victims are supported in giving evidence to support the laying and prosecution of such charges.

Recommendation 12–6 State and territory police guidelines or codes of practice should provide guidance to police about charging an offender with breach of a protection order and any underlying criminal offence constituting the breach. In particular, such guidance should address the issue of perceived duplication of charges and how that issue is properly addressed by a court in sentencing an offender for multiple offences based on the totality principle and principles relating to concurrent and cumulative sentences.

Better data capture

12.122 Proper data capture is essential to the formulation and development of policy. This complements the key strategy of building the evidence base recommended in Time for Action.[167] As stated by the Commissions in Chapter 31, a commitment to quality data collection and evaluation is crucial to ensuring systemic change and improvement.

12.123 The Commissions reiterate their views expressed in the Consultation Paper, that it would be beneficial for state and territory courts to capture separately statistical data about criminal matters lodged or criminal offences proven in their jurisdictions that arise in a family-violence related context.

12.124 However, the Commissions acknowledge that not all state and territory courts maintain statistics about criminal matters lodged or proven in their jurisdictions in the first instance. The key outcome which the Commissions wish to achieve is the capture of separate data about criminal matters or offences that occur in a family-violence related context, acknowledging, for example, the role that such statistics can play in highlighting the number of deaths that occur as a result of family violence. The agency upon which the responsibility for such data capture should be placed is a secondary issue. Each state and territory government may need to decide the body or agency within their respective jurisdictions to which these responsibilities should be delegated.

12.125 Therefore, the Commissions recommend that, to the extent that state and territory courts do record and maintain such statistics, they should ensure that those statistics capture separately criminal matters or offences that occur in a family-violence related context. In all other cases, state and territory governments should ensure the separate capture of statistics about criminal matters or offences in a family-violence related context within their jurisdictions.

Recommendation 12–7 To the extent that state and territory courts record and maintain statistics about criminal matters lodged or criminal offences proven in their jurisdiction, they should ensure that such statistics capture separately criminal matters or offences that occur in a family-violence related context. In every other case, state and territory governments should ensure the separate capture of statistics of criminal matters and offences in their jurisdictions that occur in a family-violence related context.

[116] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 445.

[117] Ibid, 448.

[118] Although, as noted below, in some jurisdictions, including NSW, there is a presumption of imprisonment for breach of protection orders involving violence: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14.

[119] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 448–449.

[120] Magistrates Court of Tasmania, Annual Report 2006–07, 37.

[121] Ibid, 37.

[122] Magistrates Court of Tasmania, Annual Report 2008–09, 31–32.

[123] Ibid, 31.

[124] Magistrates’ Court of Victoria, Annual Report 2008–09, 90.

[125] G Zdenkowski, Consultation, Sydney, 6 November 2009.

[126] Consultation Paper, Question 6–17.

[127] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[128] Queensland Law Society, Submission FV 178, 25 June 2010.

[129] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[130] National Legal Aid, Submission FV 232, 15 July 2010. Similar views were expressed in Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

[131] Victorian Government, Submission FV 120, 15 June 2010.

[132] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[133] Northern Territory Legal Aid Commission, Submission FV 122, 16 June 2010.

[134] Confidential, Submission FV 164, 25 June 2010.

[135] Confidential, Submission FV 198, 25 June 2010.

[136] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[137] J Stubbs, Submission FV 186, 25 June 2010.

[138] Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.

[139] Consultation Paper, Question 6–18.

[140] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. The Queensland Law Society emphasised the need for police expertise: Queensland Law Society, Submission FV 178, 25 June 2010, and one legal service provider emphasised the need for ‘police education about the impact of the actions taken or not taken by police in perpetuating the cycle of violence a victim experiences’: Confidential, Submission FV 183, 25 June 2010.

[141] Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010.

[142] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[143] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[144] Confidential, Submission FV 198, 25 June 2010.

[145] Berry Street Inc, Submission FV 163, 25 June 2010.

[146] Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.

[147] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[148] Confidential, Submission FV 164, 25 June 2010.

[149] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. Centacare Safer Family Support Services suggested that breaches of protection orders which feature physical violence, wilful damage, controlling behaviour or threats should be called aggravated breaches so that they can be recorded in this way on a criminal history and taken into account in sentencing: Centacare Safer Families Support Service, Submission FV 118, 15 June 2010.

[150] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010. Better data capture is discussed further below.

[151] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[152] Better Care of Children, Submission FV 72, 24 June 2010.

[153] Consultation Paper, Proposal 6–16.

[154] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010;

[155] Queensland Law Society, Submission FV 178, 25 June 2010.

[156] Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[157] Confidential, Submission FV 164, 25 June 2010.

[158] National Legal Aid, Submission FV 232, 15 July 2010, Legal Aid NSW, Submission FV 219, 1 July 2010.

[159] Confidential, Submission FV 162, 25 June 2010.

[160] Queensland Government, Submission FV 229, 14 July 2010.

[161]R v Patison (2003) 143 A Crim R 118, 113.

[162]Johnson v The Queen (2004) 205 ALR 346, 355.

[163] Rec 32–5.

[164] Rec 9–2.

[165] Recs 29–3, 32–1–32–3.

[166] Rec 32–4.

[167] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), [1.5], [2.4], [3.4], [4.5], [5.4], [6.3].