What Constitutes a ‘Family Violence Offence’?
In order to fall within the definition of a ‘family violence offence’ in Western Australia the court must be satisfied of the following:
- The offence was committed on or after 1 January 2021;
- The defendant was in a ‘designated family relationship’ with the victim at the time of the offence, and
- The offence was either:
- A breach of a Family Violence Restraining Order; or
- An offence under a specific section of the Criminal Code (WA) – as listed below.
To be in a ‘designated family relationship’ with the victim if, either before or at the time of the alleged offence, the defendant and the victim must have been in married or in a de facto or intimate family relationship. An ‘intimate family relationship’ is defined as a relationship in which the defendant and the victim were effectively married under a cultural or religious tradition, or a relationship featuring romantic involvement. It is worth noting that a defendant is not necessarily in a ‘designated family relationship’ with all members of their family, but only with those with whom they share a relationship as detailed above.
When determining whether a defendant’s conduct meets the definition of a ‘family violence offence,’ it is necessary to consider the specific section of the Act that the charge has been brought under. This information can be found on the Prosecution Notice. If a defendant has been charged with a breach of the Restraining Orders Act 1997 (WA),they may only be liable for a ‘family violence offence’ if charged under sections 61(1) or (1A). If charged under the Criminal Code (WA), they may only be liable for a ‘family violence offence’ if charged under the following sections:
-Section 221BD – Distribute intimate image
-Subsections 279 to 283 – Homicide
-Sections 292, 293, 294, or 297 – Endangering life, health, or grievous bodily harm
-Section 298 – Suffocation and strangulation
-Section 300 – Persistent family violence
-Sections 301, 304, 313, 317, or 317A – Wounding or assaults
-Subsections 332 to 336 or section 328 – Sex offences
-Sections 332 or 333 – Kidnapping or deprivation of liberty
-Subsections 338A to 338C or section 388E – Threats or stalking
-Section 444 – Criminal damage
What if there are Multiple Family Violence Offences?
If a Magistrate or Judge finds that a defendant meets the above 3 parts to the definition, they will convict them of a ‘family violence offence.’ If convicted of three ‘family violence offences’ in the Magistrates Court or two ‘family violence offences’ in the District Court, the court may declare the defendant a ‘Serial Family Violence Offender.’
What Is the Significance of Being Declared a ‘Serial Family Violence Offender’?
Accumulating multiple ‘family violence offences’ and being declared a ‘Serial Family Violence Offender’ can have serious legal repercussions if charged with further criminal offences.
Firstly, the defendant will be sentenced to longer and harsher penalties if convicted of further ‘family violence offences,’ such as terms of imprisonment, community-based orders, or post-sentence supervision orders.
Further to this, the defendant may be subjected to ongoing electronic monitoring. Courts must consider this as a condition of any bail or community-based orders they impose. Even if sentenced to a term of imprisonment, the Prisoners Review Board must consider electronic monitoring as part of any re-entry release orders or post-sentence supervision at sentencing.
Should you or someone you know be charged with a ‘family violence offence’ in Western Australia, it is essential to seek legal advice from an experienced criminal defence lawyer at an early stage. To discuss your options, call Hugo Law Group in Perth at (08) 6255 6909 to make an appointment to speak to one of our lawyers.
Nic Wright
Hugo Law Group
Perth
