12. Breach of Protection Orders

Recommendation 12–1 State and territory legislation should provide that a person protected by a protection order under family violence legislation cannot be charged with or found guilty of an offence of aiding, abetting, counselling or procuring the breach of a protection order.

Recommendation 12–2 Federal, state and territory police, and directors of public prosecution should train or ensure that police and prosecutors respectively receive training on how the dynamics of family violence might affect the decisions of victims to negate the existence of family violence or to withdraw previous allegations of violence.

Recommendation 12–3 Police codes of practice or operating guidelines, and prosecutorial policies should ensure that any decisions to charge or prosecute victims of family violence with public justice offences—such as conspiracy or attempts to pervert the course of justice, where the conduct alleged to constitute such offences is essentially conduct engaged in by a victim to reduce or mitigate the culpability of an offender—should only be approved at the highest levels within state or territory police services, and by directors of public prosecution, respectively.

Recommendation 12–4 Police should be trained about the appropriate content of ‘statements of no complaint’ in which victims attest to the fact that they do not wish to pursue criminal action. In particular, police should not encourage victims to attest that no family violence occurred when the evidence clearly points to the contrary.

Recommendation 12–5 The national family violence bench book—the subject of Rec 13–1 and Rec 31–2—should contain a section on the sentencing of offenders for breach of protection orders. This section should provide guidance to judicial officers on how to treat the consent of a victim to contact with a respondent that is prohibited by a protection order. In particular, this section should address the following issues:

1. that it is the responsibility of the respondent to a protection order to obey its conditions;
2. the dynamics of power and control in family violence relationships and how such dynamics might vitiate a victim’s initiation of, or consent to, contact prohibited by a protection order;
3. that the weight the court is to give to the fact that a victim initiated or agreed to contact prohibited by a protection order, will depend on the circumstances of each case; and
4. while a victim of family violence may have genuinely consented to contact with the respondent to a protection order, a victim can never be taken to have consented to any violence committed in breach of a protection order.

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.

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.

Recommendation 12–8 The national family violence bench book (see Recs 13–1 and 31–2) should contain a section guiding courts on how to sentence offenders for breach of protection orders, addressing, for example:

1. the purposes of sentencing an offender for breach of a protection order;
2. the potential impact of particular sentencing options, especially fines, on a victim of family violence;
3. sentencing factors relating to the victim, including the impact of the offence on the victim;
4. sentencing factors relating to the offender, including the timing of the breach;
5. factors relevant to determining the severity of sentencing range and the appropriateness of particular sanctions for different levels of severity of breach;
6. that breaches not involving physical violence can have a significant impact on a victim and should not necessarily be treated as less serious than breaches involving physical violence; and
7. the benefits of sentencing options that aim to change the behaviour of those who commit violence.

Recommendation 12–9 Police operational guidelines—reinforced by training—should require police, when preparing witness statements in relation to breach of protection order proceedings, to ask victims about the impact of the breach, and advise them that they may wish to make a victim impact statement and about the use that can be made of such a statement.

Recommendation 12–10 State and territory family violence legislation should not impose mandatory minimum penalties or mandatory imprisonment for the offence of breaching a protection order.