Recent amendments to the Family Violence Protection Act have created three new offences in relation to breaches of family violence intervention orders and family violence safety notices.
The Justice Legislation Amendment (Family Violence and Other Matters) Act inserted the following provisions into the Family Violence Protection Act:
- Contravention of notice intending to cause harm or fear for safety – section 37A;
- Contravention of order intending to cause harm or fear for safety – section 123A; and
- Persistent contravention of notices and orders – section 125A.
Each of the new offences carries a maximum penalty of 5 years imprisonment. The section 37A and 123A offences legislate for increased maximum penalties for a breach of the summary offences (sections 37 and 123) where the breach is aggravated by an intention to cause harm. The section 125A offence provides for increased punishment of offenders who persistently breach family violence intervention orders (FVIOs) or family violence safety notices (FVSNs).
Sections 37A and 123A (Harm/Fear Breach Offences)
The inclusion of section 37A which relates to FVSNs, and section 123A which relates to FVIOs, while not creating new offences in themselves, make it an indictable offence to contravene a FVSN or FVIO in circumstances which are particularly harmful to the victim.
The prosecution must show that the accused has contravened a FVSN or FVIO and either intends to cause, or knows that his or her conduct will probably cause:
- physical or mental harm to the person protected by the notice or order; or
- apprehension or fear in the person protected by the notice or order.
Mental harm, as defined in the Family Violence Protection Act, includes psychological harm and suicidal thoughts. Examples of behaviour which may constitute a breach of the offence include, but are not limited to:
- showing naked photos of the protected person to family and friends;
- uploading these photos to social media websites;
- sending death threats via text message;
- indicating to the person that they are or may be put in physical danger e.g. sending them pictures of tombstones or putting a bullet in their letterbox.
The maximum penalty for breaching the section 37A or 123A indictable offences is level 6 imprisonment (5 years maximum) and/or a fine of 600 penalty units.
Section 125A (Persistent Breach Offence)
Section 125A was inserted into the Family Violence Protection Act to make the persistent contravention of FVSNs or FVIOs an indictable offence.
In order to be found guilty of a section 125A offence, the prosecution must first show that the accused engaged in conduct that would constitute an offence against section 37 or 123. They must then show that on at least 2 other occasions and within 28 days of that first offence, the accused engaged in conduct that would constitute an offence against section 37 or 123 against that same protected person or in contravention of the notice or order. The prosecution must also demonstrate that the accused knew or ought to have known that they were contravening the notice or order.
Calculating the 28 day period can be difficult in this situation. The Act does not say that three contraventions of sections 37 or 123 must occur within a 28 day period. If an accused person contravenes sections 37 or 123, which triggers the operation of section 125A (meaning the accused has committed a third offence), the 28 day period is calculated fromthe day before the date of the third offence. If two offences occurred on the 1st and 2nd of January for example, and another offence occurred on the 29th of January, this would fall within the scope of section 125A.
Further, pursuant to the Victorian Supreme Court of Appeal case of Tognolini v R  VSCA 113, the Court unanimously held that:
‘where two (or more) acts occur, it will not be open as a matter of law to conclude that they occurred on separate “occasions” unless there is a clear separation in time or circumstance between the acts’.
While this was applied to section 47A of the Family Violence Protection Act,it might also be applied to section 125A. This conclusion would mean that in order to be classified as a separate occasion, offences against sections 37 or 123 must be separated by time or circumstance. But it may be possible to show two separate occasions where there is one instance of breach against two persons protected by the same FVSN or FVIO.
This is a difficult and contentious point of law, with differing views on what constitutes an adequate period of time. Consult an experienced criminal lawyer to help you prepare a defence to these charges today.
The maximum penalty for a breach of section 125A indictable offence is level 6 imprisonment (5 years maximum) and/or a fine of 600 penalty units.
To satisfy the physical element of the offence, the prosecution must prove that during the alleged 28 day period the accused engaged in conduct in contravention of section 37 or 123 on at least 3 occasions. The prosecution must prove all three of the contraventions.
If you have been charged with contravening section 125A of the Family Violence Protection Act, it is imperative that you contact one of our experienced criminal lawyers as they may be able to raise a defence to one or more of the alleged breaches of the Act.
It is important to note that the three breaches need not be reported separately, and a charge under section 125A can still be brought if the victim comes forward only once for breaches of sections 37 or 123 on three or more occasions within a 28 day period.
Further, the police need not charge the accused if every breach is brought separately, but may still charge the accused under the persistent breach offence once the required number of breaches have accumulated within the designated period.
If the section 125A charge fails, an accused person may still be charged for any other contraventions of sections 37 or 123. You may still need to consult a criminal solicitor to bring a defence to section 37 or 123 charges, even if the prosecution cannot make out the persistent breach charge.
If the accused has been charged with the section 125A persistent breach offence, they cannot then be charged for the same breaches against sections 37, 37A, 123 or 123A. All of the relevant offences are charged under the one persistent breach offence. This is known as a duplicity defence.
However, it is important to note that the duplicity defence will not be available for other substantive offences committed in conjunction with a breach against a FVSN or FVIO such as assault, burglary, property damage or sexual offences.
Indictable Offences Able to be Tried Summarily
Charges under sections 37A, 123A or 125A are indictable offences triable summarily. Only the most serious contraventions of these sections will be prosecuted by the Office of Public Prosecutions (OPP). Otherwise they will usually be handled summarily by Police Prosecutors.
Pursuant to section 29 of the Criminal Procedure Act, the Magistrates’ Court may hear an indictable matter summarily if it considers the charge is appropriate, and the accused consents to a summary hearing. In determining whether the charge is appropriate, the Court takes into consideration:
- the seriousness of the offence, including –
o the nature of the offence; and
o the manner in which the offence was committed, the degree of organisation and any aggravating circumstances; and
o whether the offence forms part of a series of offences; and
o the complexity of the proceeding in determining the charge; and
- the adequacy of sentences available to the court; and
- whether a co-accused was involved; and
- any other relevant considerations.
It is usually preferable that matters are heard summarily. Contact one of our experienced criminal lawyers to assist you in getting a charge against one of these sections heard summarily.
An accused who has been arrested and charged with any of these indictable offences may have to ‘show cause’ in order to justify being released for detention – pursuant to section 4(4)(ba) of the Bail Act. If you have been arrested and are required to ‘show cause’ for release, contact one of our criminal solicitors immediately to assist you in your matter. We have criminal lawyers in Melbourne, Dandenong, Frankston, Moorabbin & Ringwood. Dribbin & Brown offer a 24 hour phone service.