Criminal Law

By Carley Hitchins


Family Violence Law Reforms

The Reform

On 11 August 2021, the Crimes Legislation Amendment Act 2021 (No 2) (“the Act”) received notification. The Act makes several amendments to crime legislation in the ACT, most notably the addition of sentencing matters relating to family violence offences.

Magistrates and Judges in the ACT are now required to give specific consideration when sentencing a person convicted of a crime in a family violence context and will have to consider where the offence occurred, whether a child was present, if the crime was a serious family violence offence and whether the perpetrator had previous family violence convictions.

The changes were prompted by the 2019 case of R v UG [2020] ACTCA 8. In that case, the Court of Appeal held that absent any statutory provision to the contrary, in a criminal justice system based on individualised justice, there is no place for a separate sentencing regime that applies to offenders who commit “family violence offences”.  This is the first step in the statutory implementation of such a regime.

Attorney-General, Shane Rattenbury, said in his media release that the case made it clear the courts needed the appropriate tools to sentence offenders, prevent family violence and ultimately protect the community.

“This law is about making sure the courts take into account these circumstances and potentially do provide more serious penalties, if the matter warrants it,” Mr Rattenbury said.

The explanatory statement for the Crimes Legislation Amendment Bill 2021 (ACT) (“the Bill”) describes the new amendments as an effort to ensure that “family violence is a matter which the courts must consider appropriately in the sentencing process.” The new section is “not intended to reduce a judicial officer’s discretion” but to “consider additional factors as part of the sentencing process”.

The Attorney General has flagged that further amendments to sentencing legislation are likely, including the addition of aggravated offences.  It remains to be seen whether these amendments will have any substantial difference on the sentencing process for family violence matters or whether it is just lip service to a very complex and controversial issue.

Body Worn Cameras

Part of the reform also allows for the widespread use of body-worn cameras by ACT Policing officers, including on private property without consent. Prior to this amendment, permission needed to be sought from the lawful occupants to record inside private premises.

Mr Rattenbury said this would help in family violence scenarios. “Body-worn cameras provide a clear, factual account of what happened, and I think both protect police and protect the community,” Mr Rattenbury said.

“They can be particularly useful in the circumstances of family violence – having that evidence from the body-worn camera could be very relevant to the subsequent court proceedings.”

Whilst body-worn cameras provide the best objective evidence and we encourage the use of them, transparency with respect to the use of these devices is necessary. This includes what is recorded, how it is stored, edited and destroyed, who can access the footage, and issues of admissibility in court proceedings. We have already seen matters where they are conveniently switched off at important times and crucial evidence has been missed.  There needs to be automatic recording by these devices, perhaps from the moment a police officer leaves their vehicle.  Such automation will ensure all peoples rights are protected, including the accused person.

If you have any questions about the new amendments for family violence matters or the use of body-worn cameras by police, please contact the criminal law team at Aulich.