Criminal Law

By Satomi Hamon

14.02.22

ACT Government seeks tougher family violence laws

The Family Violence Legislation Amendment Bill 2022 (“the Bill”) was introduced to the ACT Legislative Assembly yesterday (10 February 2022). The Bill seeks to reduce trauma for family violence victims involved in court proceedings and to strengthen sentencing options for perpetrators of family violence.

The Family Violence Legislation Amendment Bill 2022 will, amongst other things:

  • Create an aggravated offence scheme that allows expanded penalties for certain offences when committed in the context of family violence;
  • Limit cross-examination on the contents of Victim Impact Statements, including in other proceedings;
  • Insert certain new aggravated family violence offences into the schedule of disqualifying offences within the Working with Vulnerable People (Background Checking) Act 2011; and
  • Create a legislative requirement to review the Family Violence Act 2016every three years.

In 2019, the ACT Government initiated a review of the Family Violence Act 2016 to find ways to better protect victims. This was prompted by the 2019 case of R v UG [2019] ACTSC 290. In that case, a man armed with an axe threatened his family and rammed a police car as he attempted to flee the scene with his children. He received a sentence of 16 months imprisonment which was fully suspended after the man served 4 months. The sentence was appealed by crown prosecutors and later deemed “manifestly inadequate” by the ACT Court of Appeal, but the man was not re-sentenced because he had made attempts to rehabilitate himself.

Attorney-General Shane Rattenbury said the case made it clear the courts needed more power to take family violence into account when sentencing offenders. The Bill’s reforms are phase two of the Government’s legislative response to the review, after new laws were introduced in June 2021. Those laws introduced a requirement on the courts to consider certain factors when sentencing for a family violence offence, including:

  • Whether the offending occurred at the home of the victim, the offender or another person;
  • Whether the offending occurred when a child was present; and
  • If the offence was a serious family violence offence – whether the offender has any previous convictions for serious family violence offences.

ACT Attorney-General Shane Rattenbury

“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.

In response to sexual assault survivor Grace Tame’s continued advocacy, the Bill will also change the name of the offence of ‘sexual relationship with child or young person under special care’ to ‘persistent sexual abuse of child or young person under special care’.

Ms Tame called for this reform during the Meeting of Attorneys-General in November last year, which prompted the ACT Government to make this amendment. “The former charge implies consent, while the latter reflects the gravity and the truth of an unlawful, criminal act committed against an innocent child victim,” she said.

Mr Rattenbury said he was struck by Ms Tame’s powerful advocacy. “When presented with victim-survivors’ stories such as these, we have a responsibility to act, which is why we have brought forward this reform at the first opportunity.”

It remains an area of contention as to whether these amendments are actually needed and whether they will actually achieve anything – as opposed to being just Government lip service to a very complex issue.  What is obvious to us as criminal lawyers is that general deterrence is often not achieved in reality and increasing penalties (which is what the reforms will lead to) does not solve the problem.  Perhaps the Government should have thrown some money in the direction of implementing further community-based programs to address the underlying issues that lead to instances of family violence in the first place.

These areas of the law are often difficult to navigate.  If you or someone you care about is charged with a family violence matter it is very important that they get good legal representation early-on in the process.  Contact the Aulich Criminal Law team on 6279 4222 to discuss your matter further.