Serial Family Violence Offender Declarations (WA)

When a court in Western Australia is sentencing a person for criminal offences, it has the power to also make orders and declarations that do not form part of the sentence. This power is contained in part 17 of the Sentencing Act 1995. One of the declarations that courts may make under this part of the act is a Serial Family Violence Offender Declaration.

Grounds for an Application

The court has the power to make a declaration that an offender is a Serial Family Violence Offender if:

1. the offender has, on conviction, been convicted of at least two prescribed offences which may only be tried on indictment, with at least two of those prescribed offences having been committed on different days; or
2. the offender has, on conviction, been convicted of at least three prescribed offences, with at least three of those prescribed offences having been committed on different days.

What is a Prescribed Offence?

Under the Sentencing Act 1995, prescribed offences are defined to be a ‘family violence offence’. The following offences are family violence offences when they occur in a family violence context:

• Breach of a Family Violence Restraining Order (section 61(1) of the Restraining Orders Act 1997 (WA);
• Breach of a Violence Restraining Order (section 61(1A) of the Restraining Orders Act 1997 (WA);
• Distribution of an intimate image (section 221BD of the Criminal Code (WA);
• Murder (section 279 of the Criminal Code (WA);
• Manslaughter (section 280 of the Criminal Code (WA);
• Unlawful Assault causing Death (section 281 of the Criminal Code (WA);
• Attempt to Unlawfully Kill (section 283 of the Criminal Code (WA);
• Disabling in order to Commit an Indictable Offence (section 292 of the Criminal Code (WA);
• Stupefying in order to Commit Indictable Offence (section 293 of the Criminal Code (WA);
• Act intended to cause Grievous Bodily Harm or Prevent Arrest (section 294 of the Criminal Code (WA);
• Grievous Bodily Harm (section 297 of the Criminal Code (WA);
• Suffocation and strangulation (section 298 of the Criminal Code (WA);
• Persistent Family Violence (section 300 of the Criminal Code (WA);
• Wounding (section 301 of the Criminal Code (WA);
• Act or omission causing Bodily Harm or Danger (section 304 of the Criminal Code (WA);
• Common Assault (section 313 of the Criminal Code (WA);
• Assault Occasioning Bodily Harm (section 317 of the Criminal Code (WA);
• Assault with intent (section 317A of the Criminal Code (WA);
• Indecent Assault (section 323 of the Criminal Code (WA);
• Aggravated Indecent Assault (section 324 of the Criminal Code (WA);
• Sexual Penetration without Consent (section 325 of the Criminal Code (WA);
• Aggravated Sexual Penetration without Consent (section 326 of the Criminal Code (WA);
• Aggravated Sexual Coercion (section 328 of the Criminal Code (WA);
• Kidnapping (section 332 of the Criminal Code (WA);
• Deprivation of Liberty (section 333 of the Criminal Code (WA);
• Threat with intent to gain benefit (section 338A of the Criminal Code (WA);
• Threats (section 338B of the Criminal Code (WA);
• Statement or Act creating false apprehension as to existence of threat or danger (section 338C of the Criminal Code (WA);
• Stalking (section 338E of the Criminal Code (WA); and
• Criminal Damage (section 444 of the Criminal Code (WA).

Are there grounds for a Serial Family Violence Offender Declaration?

In determining whether there are grounds to make a declaration, the Sentencing Act 1995 (WA) provides:

1. The victim does not need to be the same.
2. The offences do not need to be the same.
3. Only one of the offences must have occurred in WA.
4. One or more of the convictions may have been by a court outside of WA.
5. It is immaterial in which order the offences were committed.
6. An offence will not be taken into account if the offence was committed when the person was under 18.
7. All the offences must have been committed within a 10-year period unless the court is satisfied that exceptional circumstances exists which may the order appropriate.

Mandatory Factors

In addition to the above, the court must consider the following factors:

1. The level of risk that the offender may commit another family violence offence.
2. The offender’s criminal record.
3. The nature of the prescribed offences for which the offender has been convicted.

The court can order that the offender be assessed by an approved expert to assist in assessing the above.

Who can make the application?

An application for a Serial Family Violence Offender declaration can be made by the court on its own initiative or an application by the prosecutor.

Duration & Cancellation of a Serial Family Violence Offender Declaration

If a court makes a declaration against an offender, it will have an effect for an indefinite period. Only after 10 years can a person apply to have the declaration cancelled. In determining whether to cancel the order, the court must have regard to the same facts as set out above.

Consequences

There are a number of consequences for a person when they are declared a Serial Family Violence Offender.

These consequences include the following:

1. Electronic monitoring requirements can be imposed as a separate condition of a pre-sentence order, community order, intensive supervision order or a conditional suspended imprisonment order.
2. At the time of considering parole, the Prisoners Review Board must give specific consideration to imposing an electronic monitoring requirement.
3. If an offender is subsequently charged with a further family violence offence, a judicial officer can only grant bail if there are exceptional circumstances as to why the person should not be kept in custody and a home detention report needs to be received and considered.

The purpose of the declaration is to identify offenders who repeatedly commit family violence offences. A declaration can significantly affect the offender pre- and post-sentencing.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.