Breach of protection orders

In each state and territory, the breach of a protection order is a criminal offence and, as such, can result in the parties to protection order proceedings under family violence legislation entering into the criminal justice system, either as accused persons or witnesses.

Aid and abet provisions

An issue for this Inquiry is the extent to which police may threaten to, or actually charge, a victim with aiding, abetting, counselling or procuring a breach of a protection order where they believe the victim consented to the breach. The VLRC recommended that if the police believe that a victim has consented to a breach, they should explain the procedure for varying or revoking an order. If necessary, police should apply for a variation or revocation on behalf of the victim with his or her consent.[12] The WA review recommended an amendment to the Criminal Code (WA) to preclude victims for whose benefit a protection order has been made from being charged with aiding and abetting a breach of the order.[13] It also recommended that the court should be given power to grant leave to proceed in an application to vary or cancel a protection order, of its own motion, at the hearing of an allegation of a breach, where there is evidence of the person protected being complicit.[14]

In the Commissions’ view, it is inappropriate for victims to be charged with aiding and abetting breaches of protection orders because it overshadows the fact that a protection order is made against a person who uses family violence—not the victim. Relevant state and territory legislation—whether family violence legislation or criminal legislation—should be amended to 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 such an order.

The Commissions consider that there is some merit in allowing a court hearing an allegation of breach of a protection order to be empowered to grant leave to proceed in an application to vary or cancel a protection order of its own motion, where (a) there is evidence that the victim for whose benefit the protection order was made gave free and voluntary consent to the breach; and (b) the court is satisfied that the victim, in fact, wants to vary or revoke the protection order.

Proposal 6–13 State and territory legislation should be amended, where necessary, to provide that a person protected by a protection order under family violence legislation cannot be charged with or guilty of an offence of aiding, abetting, counselling or procuring the breach of a protection order.

Proposal 6–14 State and territory family violence legislation should empower a court hearing an allegation of breach of a protection order to grant leave to proceed in an application to vary or cancel a protection order of its own motion where:

  1. there is evidence that the victim for whose benefit the protection order was made gave free and voluntary consent to the breach; and
  2. the court is satisfied that the victim wants to vary or revoke the protection order.

Conspiracy to pervert the course of justice

An unfortunate corollary to charging victims of family violence with aiding and abetting the breach of a protection order is charging such victims with conspiracy to pervert the course of justice for conduct engaged in by them to reduce the culpability of the offender—such as withdrawing their statements. The Commissions have grave concerns about this practice and are interested in hearing of any circumstances where this has occurred.

The charging and prosecution of victims of family violence for conduct seemingly undertaken by them to mitigate the culpability of offenders ignores the nature of family violence—particularly the features of coercion and control, and the damaging psychological impact that this has on victims, as well as the fear which it instils. It also overlooks the cyclical and complicated nature of family violence relationships, ‘which often lead victims to withdraw charges or understate the harm of particular conduct during periods of calm in their relationship’.[15]

Above the Commissions propose legislative amendment to ensure that victims of family violence cannot be guilty of aiding and abetting the breach of a protection order—or cannot be charged with such offences. It is a logical extension of that policy stance also to propose legislative amendment to ensure that victims of family violence cannot be charged with or be guilty of offences—such as conspiracy or attempt to pervert the course of justice—where the conduct alleged to constitute the elements of those offences is essentially conduct engaged in by a victim to reduce or mitigate the culpability of the offender.

It is imperative that any legislative change in this area is accompanied by cultural change. This will necessitate education and training of police and prosecutors. The proposed legislative amendment should be reinforced by guidelines governing police and prosecutors—for example appropriate directions could be incorporated in police codes of practice or operating procedures, and prosecutorial policies or guidelines.

Proposal 6–15 State and territory criminal legislation should be amended to ensure that victims of family violence cannot be charged with, or be found guilty of, offences—such as conspiracy or attempt 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 the offender. Legislative reform in this area should be reinforced by appropriate directions in police codes of practice, or operating procedures and prosecutorial guidelines or policies.

Consent to breaches

There is no defence of consent to breach of a protection order in any Australian state or territory. A related issue that arises on breach of a protection order is whether it is inappropriate to allow a person who has used violence to rely on the consent of the victim to the breach of the order as a mitigating factor in sentencing. The WA review of family violence legislation found that although consent could no longer be relied upon as a defence to a breach, consent was still being raised by way of a plea of mitigation and accepted by courts. The WA review recommended that consent be removed as a mitigating factor in sentencing on conviction for breach of a protection order.[16]

The Commissions are interested in ascertaining whether, as a matter of practice, consent to breach of a protection order is being raised and accepted as a mitigating factor in sentencing proceedings. The Commissions are also interested in stakeholder views on whether there should be a legislative prohibition on considering consent as a factor in sentencing for breach—or whether such prohibition would infringe on the discretion of judicial officers to take into account relevant circumstances surrounding the commission of an offence.[17]

Question 6–15 In practice: (a) are persons who breach protection orders raising consent of the victim to the breach as a mitigating factor in sentencing; and (b) are courts treating consent of a victim to a breach of a protection order as a mitigating factor in sentencing?

Question 6–16 Should state and territory family violence or sentencing legislation prohibit a court from considering the consent of a victim to breach of a protection order as a mitigating factor in sentencing?

Charging for breach of protection order rather than underlying offence

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, in practice, 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.

The Commissions are interested in ascertaining the extent to which charges for breach of protection orders are being laid as an alternative to charges for any applicable underlying offence, in circumstances where it would be possible for the police to lay both charges. If this is an issue in practice, the Commissions are interested to hear about suggestions for reforms. Is this an area appropriately targeted by non-legal measures such as police training, police codes of practice, and prosecutorial guidelines, or is there also scope for legislative redress?

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. The Commissions consider 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.

Question 6–17 In practice, where breach of a protection order also amounts to another criminal offence to what extent are police in each state and territory charging persons with breach of a protection order, as opposed to any applicable offence under state or territory criminal law?

Question 6–18 If there is a practice of police preferring to lay charges for breach of a protection order, as opposed to any applicable underlying criminal offence, how can this practice best be addressed to ensure victims’ experiences of family violence are not underrated?

Proposal 6–16 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.

Penalties and sentencing for breach of protection orders

The maximum penalties for breach of a protection order vary significantly across state and territory jurisdictions. Under the Model Domestic Violence Laws, breach of a protection order was made a summary offence which attracted a maximum penalty of:

  • $24,000 or imprisonment for one year for a first offence; and
  • imprisonment for two years for a second offence.[18]

Whatever the maximum penalty for breach of protection orders, a key issue is how such breaches are treated in sentencing. For example, the WA review of family violence legislation noted a concern that breaches of protection orders are being treated leniently.[19] It noted that despite legislative amendments to increase penalties for breaches, in some cases actual penalties imposed are low and do not reflect the gravity of the breach and its consequences.

The NSW family violence legislation provides that a person who breaches a protection order must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person, unless the court orders otherwise. Where the court determines not to impose a sentence of imprisonment it must give its reasons for doing so.[20]

The Commissions are interested in hearing stakeholder views about whether:

  • the lack of consistency of maximum penalties for breach of protection orders across the jurisdictions is problematic in practice;
  • it is desirable that there be consistent maximum penalties across the jurisdictions for breach of protection orders, and if so, what the maximum penalty should be;
  • in practice, there are concerns about the sentences that courts impose on offenders for breaching protection orders—in terms of both the level of penalty and the type of sanction imposed; and
  • it is desirable for jurisdictions to adopt provisions which direct courts to adopt a particular approach on the sentencing for breach of a protection order—for example such as the provision in NSW—which requires a court to sentence offenders to imprisonment for breach of protection orders involving acts of violence.

The Commissions are also interested in hearing stakeholder views about what type of non-financial sanctions are appropriate to impose on offenders for breach of protection orders where the breach does not involve violence or involves comparatively low levels of violence. The Commissions have heard that a typical non-violent breach may involve a husband—prohibited by a protection order from going within 100 metres of the victim’s residence—turning up, drunk, on the doorstep, asking to see his child. Would it be appropriate in such circumstances, for example, to impose a bond which mandated an intervention program such as an alcohol program?

Question 6–19 Should there be consistency of maximum penalties for breach of protection orders across the jurisdictions? If so, why, and what should the maximum penalty be?

Question 6–20 In practice, what issues or concerns arise about the sentences actually imposed on offenders for breach of protection orders?

Question 6–21 Should state and territory family violence legislation contain provisions which direct courts to adopt a particular approach on sentencing for breach of a protection order—for example, a provision such as that in s 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which requires courts to sentence offenders to imprisonment for breach of protection orders involving violence, unless they otherwise order and give their reasons for doing so?

Question 6–22 What types of non-financial sanctions are appropriate to be imposed for breach of protection orders where the breach does not involve violence or involves comparatively low levels of violence?

 

[12]Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), Rec 33.

[13]Western Australia Department of the Attorney General, A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), 33.

[14]Ibid, Rec 6.

[15]H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 454 (citation omitted).

[16]Western Australia Department of the Attorney General, A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), Rec 4.

[17] The Commissions further discuss sentencing factors in Ch 7.

[18]Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 64.

[19]Western Australia Department of the Attorney General, A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), 23.

[20]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14.