On 1 October 2020, there were law changes in Western Australia to include certain new offences relating to family and domestic violence, and also changes to police reporting, evidence at trials and changes to the Restraining Orders Act.
Strangulation
One of the biggest changes that the new laws bring is the addition of a new offence, being strangulation.
Previously, if someone was alleged to have put their hands around another person’s neck, depending on whether they squeezed or stopped the other person from breathing, that may have resulted in a charge of common assault or doing an act with intent to harm.
Now, however, there is a new offence added by section 298 of the Criminal Code which sets out strangulation as its own offence. In order to be convicted of this charge, the prosecution would be required to prove, beyond reasonable doubt, that the accused person blocked another person’s nose or mouth or applied pressure to their neck and impeded their normal breathing.
Common assault remains an alternative offence to this new charge, which means that if the prosecution cannot prove the above, the accused can be convicted of the alternative offence of common assault.
The new charge is an ‘either way’ offence which means it can either be dealt with in the District Court or the Magistrates Court, depending on the seriousness of the circumstances. The charge carries a maximum penalty of 5 years imprisonment in the District Court. In circumstances of aggravation (including if the accused and the victim were in a family relationship), the maximum penalty is 7 years imprisonment.
If the charge is dealt with in the Magistrates Court the maximum penalty is 2 years imprisonment and a fine of $24,000. If circumstances of aggravation apply, the maximum penalty is 3 years imprisonment and a fine of $36,000.
Persistent Family Violence
In addition to the new offence of strangulation, there is second new offence added at section 300 of the Criminal Code, being persistent family violence.
This offence applies where the accused person has committed three or more acts of family violence within a ten year period against a person who they are in a family relationship with. Family violence includes:
- Distributing intimate images;
- Suffocation and strangulation;
- Wounding;
- Doing an act or omission resulting in bodily harm or as a result of which the life, health or safety of another is likely to be endangered
- Common assault;
- Assault causing bodily harm;
- Assault with intent;
- Indecent assault and aggravated indecent assault;
- Threats;
- Stalking; and
- Criminal damage in circumstances of aggravation.
Being in a family relationship can include someone who used to be married, in a de facto relationship or in an intimate personal relationship. That means, this offence does not only cover those in current relationships.
This offence can also be dealt with either in the Magistrates Court or District Court. The maximum penalty in the District Court is 14 years imprisonment. If dealt with in the Magistrates Court, the maximum penalty is 3 years imprisonment and a fine of $36,000.
Serial family violence offender declaration
One of the other significant changes that will come into effect from 2021, is that the Court can declare someone to be a serial family violence offender. The court will be able to either make such a declaration of its own initiative, or on an application by the prosecutor.
Prior to making a declaration, the court will need to consider things like:
- the level of risk that the person may commit another family violence offence;
- the person’s criminal record;
- the nature of the offences of which the person has been convicted or found guilty.
Being the subject of such a declaration can have serious impacts on people. Being declared a serial family violence offender will disqualify someone from holding or obtaining a firearms licence and a Dangerous Goods Safety Act licence.
How our criminal defence lawyers can help
If you have been charged with an offence related to family or domestic violence, call one of our experienced criminal lawyers in Perth. We will be able to discuss your options and case with you, including any defences that may be open to you and what kind of consequences you may be facing if found guilty of the charge or charges.
If you would like some advice about current charges, or if you are currently under investigation by the police, call one of the criminal defence lawyers at Chambers Legal to discuss your case. You can contact us here.