A recent addition to the Sentencing Act in Western Australia is the ability for a sentencing court to declare a person a ‘‘Serial Family Violence Offender”. This power was granted to courts with a view to being able to better prevent recidivist family violence offenders from committing offences of family violence. The ability to make the declaration was introduced along with changes to other laws, including the Bail Act and Sentencing Act. The laws also changed the definition of ‘serious offence’ in the Sentence Administration Act, which allows the Prisoners Review Board to make a post-sentence supervision order concerning an offender.

What happens if a person is declared a Serial Family Violence Offender?

The declaration of an offender as a Serial Family Violence Offender carries significant consequences in a number of areas which are outlined below.

Different bail rules for serial family violence offenders

After the declaration is made, if an offender is charged with any further family violence offences, the ability to get bail is severely restricted. Ordinarily, an accused charged with a family violence offence, which is not alleged to have been committed while on bail, does not have to show any exceptional circumstances to be released. However, a serial family violence offender must show exceptional circumstances to even have bail considered, if they are charged with a family violence offence. This can include minor offences such as common assault which ordinarily carry a fine as a penalty.

The changes to the Bail Act were introduced in the new Schedule 1, Part C, cl. 3F. This effectively means a serial family violence offender is permanently in a ‘Schedule 2’ situation if ever charged with a family violence offence after the declaration is made.

Electronic monitoring (ankle bracelet) if sentenced to certain court orders & for parole

If a person declared to be a serial family violence offender is being sentenced, and the court grants a pre-sentence order, community based order, intensive supervision order or conditional suspended imprisonment order, the court must consider whether to impose an electronic monitoring condition. This means that for the duration of the order, the offender wears an ankle bracelet which monitors their every move. Such restrictions are not usually imposed for penalties such as these.

Similarly, the prisoners review board must consider imposing electronic monitoring when considering whether to grant parole.

Various licenses are cancelled

If you hold various licenses, they are automatically disqualified:

• A licence, permit or authorisation to hold explosives under the Dangerous Goods Safety Act; &
• A licence, permit or approval under the Firearms Act.

You are also unable to hold either of the above licenses.

Details of the declaration also become known to the Commissioner of Police and Chief officer of the Dangerous Goods Safety Act.

More likely to be subject to a Post-Sentence Supervision Order (”PSSO”)

PSSO’s are usually only imposed for serious recidivist offenders who require monitoring even after they have completed their sentence. Such orders can only be imposed for ‘serious offences’ which are listed in the High Risk Serious Offenders Act (HRSO) and include offences such as murder or serious sexual offending and violence (Eg GBH).

However, a person who is declared to be a serial family violence offender, who is sentenced to imprisonment for any family violence offence, must have their offence declared to be a ‘serious offence’ under the HRSO Act. This means that an offender who receives jail time for an offence which is not ordinarily able to be subject to a PSSO, could nevertheless be subject to a PSSO once completing their sentence.

How long does a serial family violence declaration last?

A declaration lasts for an indefinite period.

However, after 10 years of being subject to the declaration, you can apply for it to be cancelled. The court must be satisfied the declaration need no longer apply after taking into account the matters that the court would take into account when deciding to make the order in the first place.

If a conviction for a prescribed offence is quashed, the declaration ceases to be in force unless the person still meets the criteria for the declaration to be made. For example, if there are still three other prescribed offences, or two other indictable-only prescribed offences.

When can a person be declared a serial family violence offender?

The declaration can only be made if the following criteria are met:

1. The offender has been convicted by the court of a family violence offence; &
2. The offender has, on that conviction, been convicted of at least 2 prescribed offences which can only be tried on indictment, which at least 2 of those offences having been committed on different days; or
3. the offender has, on conviction, been convicted of at least 3 prescribed offences, with at least 3 of those prescribed offences having been committed on different days.

A prescribed offence is a family violence offence, an attempt to commit such an offence, or an offence in another State or Territory, or against the Commonwealth, if the acts constituting the offence would, if committed in WA, constitute a family violence offence.

In relation to the criteria in paragraph (2), this relates to serious violence offences which can only be dealt with in the District Court. For example, GBH or doing acts with intent to harm.

Children’s Court convictions do not count. Each offence must be committed with 10 years of the last conviction, unless exceptional circumstances exist.

A declaration does not have to be made if the criteria are not met, and the court can take into account all relevant factors including an offender’s criminal record, as well as being able to order an assessment of the offender by an expert.

Conclusion

The ability to declare an offender a serious family violence offender can have drastic consequences for an offender. Relatively minor family violence offences can become very serious matters, resulting in bail being refused, or a PSSO being made after conviction. If you are facing such a declaration, it is important to receive expert legal advice. Don’t hesitate to contact James Jackson Criminal Defence today for a consultation if you are dealing with a situation involving a serial family violence offender declaration.