Domestic Violence | Domestic Violence Australia

 

 

Domestic violence in any of its forms is completely unacceptable, and is mainly committed by men against women and children. The Law in Australia, and in every state and territory now acknowledges this.

A woman is murdered every week by her current or former partner, according to the Australian Institute of Criminology.

Domestic violence happens across all communities. It’s not discriminatory and it includes physical violence and exploitation of power imbalances which can go on for years.

Domestic violence is also known to impact those most vulnerable, particularly children who are exposed to domestic violence as either a victim or witness. This can have long term effects on children in respect to physical, psychological and emotional harm.

Domestic and family violence is prevalent across not only NSW, but Australia. This is strongly reflected in statistics, based on research.

To tackle this issue, new NSW legislation was introduced to better respond to domestic violence, called the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘CDPV Act’).

This law now gives greater power to senior police officers. It allows them to now make and issue provisional AVOs immediately after a domestic violence is reported. The law also now allows alleged victims of domestic violence to give their evidence in court through audio visual link (AVL) rather than in-person.

The new laws also acknowledge and give force to AVOs from other states and territories to be recognised and effective in NSW.

Here we outline the prevalence of domestic violence, what is domestic violence, and the laws on domestic violence in NSW.

Domestic Violence Hotline & Helpline | Domestic Violence Help & Support Services

Domestic violence hotlines and helplines are provided across many organisations that have been established to help those in need.

If in danger, it is always advisable to call police on ‘000’.

Some of the confidential domestic violence hotlines and helplines are outlined in the below table:

Contact Number Details of Service
1800RESPECT (1800 737 732) They are available 24/7 and provide confidential information, support service and counselling for victims of domestic violence.
1800 656 463 This is the Domestic Violence Line available 24/7, providing crisis counselling, and referral service for women, and trans women.
13 11 14 This is a contact number for lifeline for crisis support and suicide prevention.
1800 737 732 This is the 24/7 hotline providing free counselling through the National Sexual Assault, Domestic Family Violence Counselling Service.
1300 789 978 This is the Mensline Australia hotline.

 

Domestic Violence Statistics

Domestic and family violence is highly prevalent across Australia.

A large amount of domestic violence still remains unreported.

The following table outlines the extent of unreported gender based domestic violence, reflected in the Australian Bureau of Statistics (ABS) Personal Safety Survey in 2012.

Gender % who’ve not contacted police after experiencing violence from a recent partner.
Male 94.7%
Female 80.2%

The below table reflects a 2013 survey conducted by NSW Bureau of Crime Statistics and Research (BOCSAR).

Number of victims who attended domestic violence services % who reported their most recent incident to police.
300 51.8%

In 2015, 29,001 domestic violence assault incidents were recorded in NSW. Since 2011 to December 2018, this figure increased 1.9%.

Of the increase, incidents of recorded domestic violence related sexual offences, property damage, harassment, and threats all increased during the same period.

In comparison, in 2015, 30,660 non-domestic violence assault incidents were recorded in NSW. Since 2011, over the same period, this figure reduced by 4.8%.

In 2014, within NSW, 26,543 apprehended domestic violence orders (DVOs) were granted. 13,310 DVOs were breached from period April 2015 to March 2016. This represents a 4.7% increase of DVO breaches over the preceding 5-year period.

Domestic Violence Against Women

The below table outlines the number of recorded incidents of domestic violence assaults involving female victims and alleged male offenders from April 2015 to March 2016.

Number of incidents of recorded domestic violence assaults April 2015 – March 2016 % of Female Victims % of Alleged Male Offenders
29,227 69.54% 80.96%

 

The below table outlines the number of recorded incidents of breaches of domestic violence orders involving female victims for period April 2015 to March 2016.

Number of incidents of recorded breaches of DVOs April 2015 – March 2016 % of Female Victims
29,227 83.09%

 

The below table outlines the number of domestic violence assault and homicide child victims.

% of domestic violence assault child victims April 2015 – March 2016 % of domestic violence homicide child victims 2000 – 2012
11.80% 21.43%

Domestic Violence Against Men

Is domestic violence gendered in Australia?

The below table outlines the findings reported by the ABS in the same 2012 Personal Safety Survey.

Gender % who’ve experienced violence perpetrated by a current or former partner since 15 years of age.
Male 5.3%
Female 16.9%

The below table outlines the extent of homicides reported in NSW for period 1 July 2000 to 30 June 2012, and percentage of gender based domestic violence victims.

Number of homicides reported in NSW 1 July 2000 to 30 June 2012 Numbers that occurred in domestic violence context Numbers of domestic homicide female victims Numbers of domestic homicide male victims
995 280 164 116

59% of domestic homicides involved victims who were killed by their intimate partner (current or former). 78% of those were female intimate partner victims.

Domestic Violence Cases

Domestic violence cases are regularly heard in court.

It’s common for the court to hear a case where the DVO is breached as a result of the offender committing an assault against the protected person in an existing AVO.

In those instances, police usually charge the offender separately for both charges of assault and breach of AVO, even though the charges overlap.

When an AVO is breached (contravened), it leaves the protected person without protection, and it undermines the authority of the court whilst compromising the law.

Domestic Violence Case Example Facts
R v Archer [2015] NSWSC 1487

Here, the offender killed his ex-partner who was the protected person named in the AVO.

He breached the AVO by reason of his presence at the victim’s house while intoxicated.

The AVO conditions prohibited him from approaching her within twelve hours of consuming alcohol.

Due to the offender’s complete disregard of the AVO conditions, the court concluded the AVO breach was of a grave nature, putting aside the murder that resulted from that breach.

The above is an image-based data from a 2016 ABS Personal Safety Survey.

According to this, there was an estimated 17% of Australian women 18-years or above, comprising of 1.6 million females, experienced violence by a current or former partner since 15-years-of-age.

Approximately 6% of Australian men 18-years or above, comprising 547,600 males, experienced violence by a current or former partner since 15-years-of-age.

Statistics on Domestic Violence Cases in Australia Reveal:

  • Females are almost 3-times more likely to have experienced partner violence than males.
  • 1 in 6 females, and 1 in 17 males experienced physical form of violence by a partner.
  • Females were 8 times more likely to experience violence of a sexual nature by a partner than a male.

In fact, the proportion of partner violence experienced by women over the preceding 1-year period remained relatively the same for over a decade, according to the 2016 ABS Personal Safety Survey report.

However, the proportion of partner violence experienced by men over the same preceding year went up from 2005 and 2016.

The below image-based data outlines the extent of partner emotional abuse.

The above image-based data reveals that 1 in 4 women (2.2 million women) from the age of 15-years reported experiencing emotional abuse by a former or current partner.

On the other hand, 1 in 6 men (1.4 million men) from the age of 15-years reported experiencing this type of abuse by a former or current partner.

The below image-based data outlines the extent of abuse before the age of 15 from the same ABS survey.

1 in 10 males witnessed violence against their mother by a partner before the age of 15.

1 in 25 males witnessed violence towards their father by a partner before the age of 15.

1 in 8 females witnessed violence against their mother by a partner before the age of 15, and 1 in 20 females witnessed it towards their father by a partner before the age of 15.

The below image-based data outlines the extent of gender based experiences of sexual harassment from the same ABS survey.

The below image-based data outlines the extent of gender based experiences of stalking from the same ABS survey.

Family and Domestic Violence Leave

As of December 2018, employees get 5-days unpaid family and domestic violence leave per year, in accordance with the National Employment Standards under the new changes to the Fair Work Act 2009 (Cth).

The whole purpose of the family and domestic violence leave is to give support to employees who’re enduring family and domestic violence, and to achieve consistency in providing all employees with the same entitlement regardless of the industry or occupation award an employee is under.

The Australian economy is hit with approximately $22 million a year cost due to domestic violence against women. This cost includes the 2nd generation effects on children, impacting on a reduction of productivity, rise in welfare, medical expenses and unemployment. In addition, it encompasses the cost to the legal justice system, funeral costs, victims compensation and the victims and survivors income tax loss.

 

What is Domestic Violence?

A domestic violence offence is defined as an offence against another person, if the person who committed the offence has or had a ‘domestic relationship’ with the victim.

In addition, it will only be considered a domestic violence offence if the offence committed was a ‘personal violence offence’.

The below table outlines the meaning of a ‘personal violence offence’ in NSW.

A ‘personal violence offence’ includes any one of the following offences, according to section 4 Crimes (Domestic and Personal Violence) Act 2007 (NSW):
  • Stalking or intimidation with intent to cause fear of physical or mental harm
  • Breaching an AVO
  • Murder
  • Sending threatening documents
  • Discharging a firearm with intent
  • Wounding or grievous bodily harm
  • Choking, suffocating or strangulating
  • Assault occasioning actual bodily harm
  • Common assault
  • Sexual assault, sexual touching (indecent assault), or a sexual act
  • Kidnapping
  • Distribute intimate image without consent, or threaten to record or distribute an intimate image.
  • Destroy or damage property (or threaten to do this).

The below table outlines the meaning of a ‘domestic relationship’ in NSW.

A ‘domestic relationship’ includes any one of the following types of current or former relationships:
  • Marriage
  • De facto partner
  • Intimate personal relationship (whether or not of a sexual nature)
  • Housemate
  • Paid or unpaid care
  • relative

In NSW, if you’re guilty of a domestic violence offence, the Court will be required to impose one of the following types of sentences as punishment:

  1. Full-time jail
  2. Intensive Correction Order with supervision
  3. Community Correction Order with supervision
  4. Conditional Release Order with supervision

Even if a person is guilty of a domestic violence offence, the court is still allowed to sentence that offender with a non-conviction sentence, which would allow the offender to walk away without a criminal record against his/her name.

Family Law Domestic Violence

A parent who’s convicted of a domestic violence offence, including a DVO where the child is named in it, will face more obstacles in family court child custody or parenting disputes in Australia.

In child custody disputes, the Family Court can and does consider if a parent either has or had an AVO or domestic violence conviction involving a child. It’s a relevant factor for the family court to take into account in parenting orders during contested child custody disputes.

In addition, an AVO and domestic violence conviction also have an impact on getting a working with children clearances through the Childrens Guardian.

 

Types of Domestic Violence

Below is a complete guide on the law, penalties, sentences and defences for the main types of domestic violence assaults in NSW.

Contravening AVO | Breach AVO Offences, Penalties, Sentences & Defences

A domestic violence AVO breach occurs if you breach an existing AVO condition, knowing you were breaching it at the time.

Penalties

Type of Domestic Violence Offence Maximum Penalty in Local Court
Breach AVO: Section 14 Crimes (Domestic and Personal Violence) Act 2007 (NSW) 2-years jail or $5,500 fine, or both

Defences

YOU WILL BE ‘NOT GUILTY’ OF AN AVO BREACH IF:
  1. The breach occurred because it was necessary to attend mediation; or
  2. The breach occurred while complying with a property recovery order; or
  3. The breach occurred in circumstances you were not served with a copy of the AVO and you were not in court when the order was made; or
  4. Self-defence; or
  5. The breach occurred accidentally without knowing you were in breach at the time; or
  6. Duress or Necessity.

What the Police Must Prove in Court

The Police Must Prove the Following Elements for the Court to Find you Guilty of Breaching an AVO:
  1. You breached a condition of the existing AVO; and
  2. You knowingly breached it.

Stalking and Intimidation Offences, Penalties, Sentences & Defences

A domestic violence intimidation or stalking offence occurs if you either intimidate or stalk a person, and, you intended to cause that person to fear physical or mental harm, or you were at least aware it’s likely to cause this to that person.

Penalties

Type of Domestic Violence Offence Maximum Penalty in Court
Stalk or Intimidate: 13 Crimes (Domestic and Personal Violence) Act 2007 (NSW) 5-years jail or $5,500 fine, or both

Defences

YOU WILL BE ‘NOT GUILTY’ OF STALK OR INTIMIDATION IF:
  1. Self Defence: Your conduct was a response to protect yourself, someone else, or your property; or
  2. Mistaken identity; or
  3. You weren’t aware, at the time, that your conduct is likely to cause fear to the other person; or
  4. Intoxication: Where you were intoxicated from alcohol or drugs to an extent that you weren’t able to form the necessary intention or awareness of causing a fear in the other person (McIlwraith v R [2017] NSWCCA 13); or
  5. Mental illness defence; or
  6. Duress or Necessity; or
  7. Citizen’s arrest using reasonable force.

Assault Occasioning Actual Bodily Harm Offences, Penalties, Sentences & Defences

A domestic violence assault occasioning actual bodily harm offence occurs if you assault someone either intentionally or recklessly, without consent, causing that person ‘actual bodily harm’ (i.e. at least bruising or scratch).

Penalties

Type of Domestic Violence Offence Maximum Penalty in Local Court Maximum Penalty in District Court
Assault occasioning actual bodily harm: 59 Crimes Act 1900 (NSW) 2-years jail or $5,500 fine, or both 5-years jail
Assault occasioning actual bodily harm in company Same as above 7-years jail

Defences

YOU WILL BE ‘NOT GUILTY’ OF ASSAULT CAUSING ACTUAL BODILY HARM IF:
  1. If the alleged physical force applied was something you did incidentally in everyday life; or
  2. If the alleged physical force applied was generally accepted by the community; or
  3. Self-defence; or
  4. If you were making a citizens’ arrest, using reasonable force; or
  5. If the prosecution fail to prove any 1 or more essential elements of this offence in court (outlined above); or
  6. If you acted out of a necessity or duress; or
  7. If the alleged victim consented to it.

Grievous Bodily Harm | Wounding Offences, Penalties, Sentences & Defences

A domestic violence offence of assault occasioning grievous bodily harm (GBH) or wounding occurs if you assault a person (intentionally or recklessly), and by reason of that assault cause that person grievous bodily harm (GBH) (i.e. broken bone) or wounding (i.e. split lip).

Penalties

Type of Domestic Violence Offence Maximum Penalty in Court Standard Non-Parole Period
Intentionally cause grievous bodily harm or wounding s33 Crimes Act 25-years 7-years
Recklessly cause grievous bodily harm s35(2) Crimes Act 10-years 4-years
Recklessly cause grievous bodily harm in company s35(1) Crimes Act 14-years 5-years
Recklessly cause wounding s35(4) Crimes Act 7-years 3-years
Recklessly cause wounding in company s35(3) Crimes Act 10-years 4-years

The standard non-parole period is not applies by courts strictly as a mandatory requirement. However, the standard non-parole period represents the bare minimum full-time jail set before eligibility for release on parole if the case falls in the mid-range of objective seriousness.

The maximum penalties are also not normally imposed by courts.

Defences

YOU WILL BE ‘NOT GUILTY’ OF GRIEVOUS BODILY HARM OR WOUNDING IF:
  1. Self Defence: If you acted in self-defence to protect yourself, someone else or your property.
  2. Causation of injury was not from your actions.
  3. Mental illness defence.
  4. Intoxication defence: If you were so intoxicated from drugs or alcohol that you were not able to form the necessary intent.
  5. Necessity or Duress.
  6. Citizen’s arrest using reasonable force.
  7. The injury is not considered ‘grievous bodily harm’ or ‘wounding’ under the law.
  8. Prosecution is unable to prove any 1 of the essential elements of the offence.

Common Assault Offences, Penalties, Sentences & Defences

A domestic violence common assault offence occurs if you do something to cause intentional or reckless fear of immediate and unlawful violence or force to another person (without consent). This can include physical or non-physical contact.

Penalties

Type of Domestic Violence Offence Maximum Penalty in Local Court
Common assault: 61 Crimes Act 1900 (NSW) 2-years jail or $5,500 fine, or both

Defences

YOU WILL BE ‘NOT GUILTY’ OF COMMON ASSAULT IF:
  1. Where there is a physical force applied, the physical force occurred as an inevitable conduct in everyday daily life, or where it’s something generally accepted; or
  2. The alleged victim was not aware of the actions alleged to be common assault; or
  3. Self-defence: this is where you acted in response of fear to protect yourself, someone else or your property, if your response is considered a reasonable response in the circumstances perceived by you at the time.
  4. Lawful correction: this is where you disciplined your child and only applies if your conduct was reasonable and warranted in the circumstances.
  5. Citizen’s arrest: this is where you were using reasonable force to arrest the alleged victim.
  6. Necessity or Duress.
  7. You will also be found not guilty if any one of the essential elements of common assault have not be proven by the prosecution (outlined above).

Using Carriage Service to Harass, Offend, Threat or Menace Offences, Penalties, Sentences & Defences

A domestic violence offence of using a carriage service occurs if you use a carriage service such as sending a text, email or call with a phone or computer in a way that:

  • A reasonable person considers offensive, harassing or menacing; or
  • To transmit, make available, publish, distribute advertise or promote private sexual material; or
  • To threaten to kill or cause serious harm to a person if the threat was intended to cause fear that it’ll be carriage out; or
  • Was intended to induce a false belief that an explosive or dangerous substance has been left in a place.

Penalties

Type of Domestic Violence Offence Maximum Penalty in Court
Use carriage service to offend, harass or menace: s474.17 Criminal Code 3-years imprisonment
Use carriage service to offend, harass or menace involving private sexual material: s474.17A Criminal Code 5-years imprisonment
Use carriage service for a hoax threat: s474.16 Criminal Code 10-years imprisonment
Use carriage service to make a threat to kill: s474.15(1) Criminal Code 10-years imprisonment
Use carriage service to make threat to cause serious harm: s474.15(2) Criminal Code 7-years imprisonment

Defences

YOU WILL BE ‘NOT GUILTY’ OF USING A CARRIAGE SERVICE OFFENCE IF:
  1. You were under the age of 10 years old; or
  2. You were over the age of 10, but less than 14, and you weren’t aware that your conduct was wrong; or
  3. Duress or necessity defence; or
  4. You acted involuntarily whether from a mental illness, intoxication from drugs or alcohol or otherwise; or
  5. You are the internet provider, carrier, carriage service provider or internet content host; or
  6. If it was someone else who did it.

Choke, Suffocate & Strangulate Offences, Penalties, Sentences & Defences

A domestic violence choke, suffocate or strangulate offence occurs if you intentionally do any of this to a person without consent.

Penalties

Type of Domestic Violence Offence Maximum Penalty in Local Court Maximum Penalty in District Court
Intentionally choke, suffocate or strangle without consent: s37(1A) Crimes Act 2-years jail or $11,000 fine, or both 5-years jail
Recklessly cause other person to go unconscious, insensible or incapable of resistance from choke, suffocate or strangulation: s 37(1) Crimes Act Same as above 10-years jail
Choke, suffocate, or strangle causing unconsciousness, insensible or incapable of resistance with intent to commit another indictable offence: s37(2) Crimes Act Same as above 25-years jail

Defences

YOU WILL BE ‘NOT GUILTY’ OF A CHOKE, SUFFOCATE, OR STRANGULATE CHARGE IF:
  1. You were acting in self-defence.
  2. The alleged victim consented.
  3. Citizen’s arrest: if the force used was reasonable force to arrest the alleged victim.
  4. Duress or Necessity.
  5. Insufficient evidence to prove any 1 or more of the elements of this offence beyond reasonable doubt.

Destroy or Damage Property Offences, Penalties, Sentences & Defences

A domestic violence offence of destroying or damaging property occurs if you intentionally or recklessly damage or destroy someone else’s property. The penalties for this depends on the type of charge and value of the amount damaged.

Penalties

Type of Domestic Violence Offence Maximum Penalty in Local Court Maximum Penalty in District Court
Intentionally or recklessly destroy or damage property where property value is more than $5,000: s195(1)(a) Crimes Act 2-years jail or $11,000 fine, or both 5-years jail
Intentionally or recklessly destroy or damage property where property value is $5,000 or less, but more than $2,000: s195(1)(a) Crimes Act 2-years jail or $5,500 fine, or both 5-years jail
Intentionally or recklessly destroy or damage property where property value is $2,000 or less: s195(1)(a) Crimes Act 2-years jail or $2,200 fine, or both 5-years jail
If destruction or damage is by fire or explosive where property value is more than $5,000: s195(1)(b) Crimes Act 2-years jail or $11,000 fine, or both 10-years jail
If destruction or damage is by fire or explosive where property value is $5,000 or less, but more than $2,000: s195(1)(b) Crimes Act 2-years jail or $5,500 fine, or both

 

10-years jail
If destruction or damage is by fire or explosive where property value is $2,000 or less: s195(a)(b) Crimes Act 2-years jail or $2,200 fine, or both 10-years jail
If destruction or damage is done in company of another person where property value is more than $5,000: s195(1A)(a) Crimes Act 2-years jail or $11,000 fine, or both 6-years jail
If destruction or damage is done in company of another person where property value is $5,000 or less, but more than $2,000: s195(1A)(a) Crimes Act 2-years jail or $5,500 fine, or both 6-years jail
If destruction or damage is done in company of another person where property value is $2,000 or less: s195(1A)(a) Crimes Act 2-years jail or $2,200 fine, or both 6-years jail
If destruction or damage is done in company of another person by fire or explosive where property value is more than $5,000: s195(1A)(b) Crimes Act 2-years jail or $11,000 fine, or both 11-years jail
If destruction or damage is done in company of another person by fire or explosive where property value is $5,000 or less, but more than $2,000: s195(1A)(b) Crimes Act 2-years jail or $5,500 fine, or both 11-years jail
If destruction or damage is done in company of another person by fire or explosive where property value is $2,000 or less: s195(1A)(b) Crimes Act 2-years jail or $2,200 fine, or both 11-years jail
If destruction or damage is done during a public disorder where property value is more than $5,000: s195(2)(a) Crimes Act 2-years jail or $11,000 fine, or both 7-years jail
If destruction or damage is done during a public disorder where property value is $5,000 or less, but more than $2,000: s195(2)(a) Crimes Act 2-years jail or $5,500 fine, or both 7-years jail
If destruction or damage is done during a public disorder where property value is $2,000 or less: s195(2)(a) Crimes Act 2-years jail or $2,200 fine, or both 7-years jail
If destruction or damage is done during a public disorder by fire or explosive where property value is more than $5,000: s195(2)(b) Crimes Act 2-years jail or $11,000 fine, or both 12-years jail
If destruction or damage is done during a public disorder by fire or explosive where property value is $5,000 or less, but more than $2,000: s195(2)(b) Crimes Act 2-years jail or $5,500 fine, or both 12-years jail
If destruction or damage is done during a public disorder by fire or explosive where property value is $2,000 or less: s195(2)(b) Crimes Act 2-years jail or $2,200 fine, or both 12-years jail

Defences

YOU WILL BE ‘NOT GUILTY’ OF A DAMAGE/DESTROY PROPERTY CHARGE IF:
  1. Duress or Necessity: You were forced to do it or you did so to avoid serious injury.
  2. Self-defence: Your actions were to protect yourself, another person or property from harm or damage, provided your actions were a reasonable response.
  3. Damage or Destruction was not caused by you
  4. Alleged damage is not considered ‘damage or destruction’ under law
  5. You didn’t realise that your actions might cause the kind of damage that resulted.

Sexual Assault Offences, Penalties, Sentences & Defences

A domestic violence sexual assault offence occurs if you without consent have sexual intercourse with (or sexually touch) a person, knowing that that person doesn’t consent to it.

Penalties

Types of Domestic Violence Sexual Assault Offences Maximum Penalty in Local Court Maximum Penalty in District Court Maximum Penalty in District Court
Sexual Assault or intercourse without consent: s61I Crimes Act N/A 14-years jail 7-years
Aggravated Sexual Assault or intercourse without consent: s61J Crimes Act N/A 20-years jail 10-years
Sexual Touching: s61KC Crimes Act 2-years jail 55-years jail N/A

Defences

YOU WILL BE ‘NOT GUILTY’ OF A SEXUAL ASSAULT CHARGE IF:
  1. Honest and reasonable grounds defence that there was consent.
  2. Medical purpose defence: where sexual intercourse took place for a medical purpose by consent.
  3. Absence of ‘sexual intercourse’, as defined by law, having took place.
  4. Duress or Necessity
  5. Where any one or more of the essential elements of what makes up the offence is not proven in court beyond reasonable doubt.

Murder Offences, Penalties, Sentences & Defences

A domestic violence murder offence occurs if you voluntarily do something causing another person to die, and you do so intentionally to cause that person death, really serious injury, serious disfiguring, or you realised the probability of your conduct causing death, or you were in the middle of committing some other type of crime which carries a maximum penalty of 25-years jail or more.

Penalties

Type of Domestic Violence Offence Maximum Penalty by Supreme Court Standard Non-Parole Period
Murder: s18 Crimes Act Life Imprisonment 20-years: only applicable if life imprisonment is not imposed.

Defences

YOU WILL BE ‘NOT GUILTY’ OF A MURDER OR MANSLAUGHTER CHARGE IF:
  1. Self-defence: If you reacted to protect yourself, someone else, or property, provided your reaction was reasonable.
  2. Causation: Where the death was not substantially caused by your actions or the death wasn’t a natural consequence from your conduct.
  3. The death was not reasonably foreseeable from your actions, or you didn’t see your conduct that caused the death as a probable consequence.
  4. The death caused was from an intervening event as being the sole cause.
  5. Mental Health Defence: Where you were suffering a mental illness of a kind recognised by law which resulted in you having no control or causing you to be unaware of the right or wrong of your conduct.
  6. Affected by Alcohol or Drugs consumed involuntarily, which resulted in you being incapable of forming the intention to kill or cause really serious injury or permanent disfigurement.
  7. Automatism: Your conduct was involuntary due to medications or something external to your body. i.e. sleepwalking or epileptic fit.

FAQ

What do you understand by domestic violence?

Domestic violence includes a range of assaults committed by a person against another person that he/she has or had a domestic relationship with i.e. ex-partner, current partner, or family member.

Domestic violence is restricted not only to a domestic relationship, but also to those assaults considered to be ‘personal violence offences’ i.e. stalk or intimidate, sexual assault, common assault and other types of more serious assaults including murder.

Is domestic violence a crime in Australia?

Domestic violence is considered a serious crime in Australia. In fact, the law prescribes heavy sentences and penalties for domestic violence charges. A Judge or Magistrate under the law is now required to sentence a domestic violence offender to either jail or strict conditional non-jail penalty.

There are many types of domestic violence crimes in Australia, including stalk, intimidation, murder and sexual offences if the victim is someone who has or once had a domestic relationship with the offender.

Is Yelling a Form of Violence?

Yelling can be considered a form of violence, namely section 61 Crimes Act of common assault, section 13 Crimes (Domestic and Personal Violence) Act of intimidation, or offensive conduct.

Yelling can result in a common assault charge if by yelling at a person, you intentionally or recklessly cause that person to fear immediate and unlawful violence without physical force while realising that it may cause that person to fear this.

Yelling can also result in an intimidation charge if by yelling at a person, you cause harassment or molestation; or results in the other person fearing for his/her safety; or do something that causes the other person a reasonable apprehension of injury, damage or violence to that person or someone’s property.

Can a Domestic Violence Charge be Dropped or Dismissed?

A domestic violence charge can be dropped early or dismissed in court if any defence to a domestic violence charge applies to a case, including self-defence; the alleged victim consented; the lawful correction; citizen’s arrest; duress or necessity; in the case of common assault; where the alleged physical force happened from an inevitable conduct in everyday life or was something generally accepted in society.

A domestic violence charge may be dropped early by getting an experienced defence lawyer to negotiate with the prosecution before going to court. This is usually done by drafting and sending a detailed legal letter to police called ‘legal representations’ outlining why the police should withdraw the charge early to save costs and time.

If the police still refuse to drop the domestic violence charge, and you have a good defence to your case, then the Magistrate or Judge can dismiss the charge(s) in court, usually if the prosecution fails to prove their case beyond a reasonable doubt.

If your case ends up being dismissed by the court even after trying to negotiate with police to get it dropped earlier, you may be entitled to seek your legal costs be paid by the police in certain situations.

Why Would a Domestic Violence Case be Dismissed?

A domestic violence case will be dismissed by a court if:

  • A domestic violence offence applies i.e. self-defence.
  • If police cannot prove all of the elements that make up the charge that’s been made against you by police.
  • If the case is word-against word (1 v 1), and the alleged victim has failed to attend court on the hearing date, the court may dismiss the charge if there is insufficient evidence produced to prove the allegations beyond reasonable doubt. Sometimes, before this occurs, the prosecution may drop the charge earlier.

How Much is Bail for Domestic Battery?

Domestic battery occurs where the assault involves the application of physical force against the victim in a domestic assault case. After police charge the alleged offender, the police may either release that person with or without bail conditions.

If police refuse to give the charged person bail, then the court will be required to determine whether to grant bail for domestic battery if a bail application is made. A court may require that security or bond be provided to the court by a surety or the alleged offender as a condition of granting bail.

The amount for bail for domestic battery will vary, depending on the seriousness of the domestic battery, community ties of the charged person, whether the charged person has a criminal history, and if so, to what extent, and many more factors outlines in section 18 of the Bail Act. Bail security or bond can range from $1,000 to million(s).

For example, the court would expect a greater security/bond for bail for a murder charge, than for an intimidation charge. Sometimes, the court won’t require a security or bond. It depends on a case by case basis.

How Many Years Can You Get for Domestic Violence?

The maximum years you can get for domestic violence will largely depend on the type of domestic violence offence, the objective seriousness of the offence, and what the law refer to as your ‘subjective circumstances which include your age, mental health and moral culpability.

For example, domestic violence offences of contravening or breaching AVO or a domestic violence common assault charge carries up to 2-years jail or $,5,500 fine, or both. Whereas, a stalk or intimidate charge carries up to 5-years jail or $5,500 fine, or both.

A domestic violence murder charge carries up to life imprisonment.

The court’s don’t usually impose the maximum prescribed sentence allowed to every case. The maximum sentences are usually applied to rare cases considered the most serious.

Section 4A Crimes (Sentencing Procedure) Act 1999 (NSW) tells courts, that for domestic violence offences, either full-time imprisonment or a supervised order sentence must be imposed. This puts a hard stance against domestic violence offences.

A supervised order sentence is a non-jail sentence that imposes conditions of supervision, and can includes a non-conviction conditional release order with supervision penalty.

Which is Worse, Domestic Violence or Assault?

A domestic violence assault is considered worse or more serious than a non-domestic violence assault in NSW. Section 4A Crimes (Sentencing Procedure) Act 1999 (NSW) requires courts to impose full-time imprisonment or a supervised order to domestic violence offenders.

A supervised order can includes a more restricted non-jail sentence.

Domestic violence is confined to a ‘personal violence offence’ against a person that you have or had a domestic relationship with. A ‘domestic relationship’ includes a former or current partner, housemate, or family. A ‘personal violence offence’ includes most types of assaults, including common assault, wounding, grievous bodily harm, actual bodily harm, stalk/intimidation, sexual assault and murder.

An assault on the other hand includes all types of assaults, not just the types restricted to domestic violence.

What Happens When You Get a Domestic Violence Charge?

After receiving a domestic violence charge by police, you’ll be provided with a number of court documents, including a ‘CAN’ known as a Court Attendance Notice outlining the specific section and domestic violence charge, court and court date.

You’ll also receive a police facts sheet which will be a one-sided version of the allegations summarising what, when, where and how the alleged offence(s) occurred- it is drafted by the police.

The police facts sheet document is generally only relevant if you’re intending to plead guilty, but even if intending to plead guilty, you may not agree with parts of the facts sheet due to its inaccuracy (after all, it is a one-sided version). There are always two sides to a story.

You may also receive a bail undertaking document outlining any conditions of bail if you are granted bail by police or court.

If you provided police with a recorded interview, you will also be provided with a copy of the disc recording of that interview. This is also known as an ERISP (Electronic Recorded Interview of Suspected Person).

If the alleged victim provided police with an interview or statement, police will provide you with the recorded audio disc of that interview or copy of that person’s statement.

After getting a domestic violence charge, you’ll be required to attend court to either enter a plea of ‘guilty’ or ‘not guilty’ to the domestic violence charge(s) in-front of the Judge or Magistrate.

It’s highly recommended to get advice and legal representation from a competent and experienced criminal defence lawyer for this process- this can make a very big difference in the outcome of your case and your future.

How Can We Prevent Domestic Violence?

Domestic violence can be prevented in the following ways:

  1. Continue with prevention programs, invest more resources into the one’s working best and analyse how they are working to implement more strategies around that. This includes stopping people turning into abusers in the first place by shifting the culture through TV and sporting stars to influence kids and younger people’s attitudes.
  2. Increase the maximum penalties for domestic violence offences. This is something already implemented in NSW under section 4A Crimes (Sentencing Procedure) Act 1999 (NSW) which requires Courts to impose heavier sentences. But this should be balanced with giving those offenders an opportunity to correct their behaviours and attitudes to domestic violence by implementing community based treatments order, which is something our laws have also implemented as an emphasis on sentencing domestic violence offenders.
  3. Increase support services funding. By providing greater access to support services such as 24/7 hotlines and counselling services will help in the fight against domestic violence in society.
  4. Consolidating the legal process of divorce proceedings and domestic violence proceedings in court. Currently, the criminal courts will hear and deal with the domestic violence offence(s), and the family court will separately hear the divorce and child custody disputes proceedings. This requires the victim, alleged victim, and offender or alleged offender having to go through legal proceedings twice which increases stress, time, resources and financial strain.
  5. Assist woman in becoming more financially independent. More recognition must go into the fact that woman give up their economic capacities to raise children- this ought to be taken into account in family court proceedings regarding dividing property disputes. Further changes such as raising the minimum wage can also assist in this move.

Is an Assault on a Female a Domestic Violence Charge?

Assaulting a female itself does not necessarily result in a domestic violence charge, unless the assault on the female (or male) was committed by a person who has a domestic relationship with that female (or male) i.e. ex-partner, current partner, ex-housemate, current housemate, or family member.

The assault must be considered a ‘domestic violence offence’ for it to be classified as a domestic violence charge i.e. common assault, actual bodily harm, wounding, sexual assault, murder, breach AVO, intimidation or stalking.

How Long Do You Go to Jail If You Hit a Girl?

How much jail time do you get for hitting a girl or guy? The jail time for hitting a girl or guy for that matter will depend on the nature of the assault and harm caused. Slapping a girl over the face leaving a red mark will likely attract a common assault charge by police which carries up to 2-years imprisonment or $5,500 fine, or both, prescribed by section 61 Crimes Act 1900 (NSW).

On the other hand, stabbing or punching a girl causing her death will attract a murder charge, which has a maximum jail term of life imprisonment.

Can a Victim Contact a Defendant?

A victim of an assault can contact the defendant but should do so with extreme caution because it can impact on the final outcome of the case in court, and also place the victim and defendant into trouble in the form of criminal charges in certain circumstances.

If a defendant has an AVO precluding him/her from contacting or communicating with the victim, then the defendant will be in breach of the AVO if he responds or replies to the victim. Breaching an avo carries heavy penalties and is taken extremely seriously by courts.

If a defendant is contacted by the victim in a criminal case, the victim and defendant can be charged by police if they attempt to pervert the course of justice or tamper with evidence by way of discussing what to say or not say in court or to police.

A victim who contacts a defendant in an assault charge taken out against the same defendant can reflect the extent or lack of fear the victim has from the defendant. This will likely affect the credibility and reliability of the victim’s evidence in court, especially in domestic violence AVO proceedings.

If the defendant is on bail conditions prohibiting him/her from communicating or contacting the alleged victim in the case, the defendant will be faced with further breach of bail charges if he/she replies to or responds to the victim’s communication.

It will be rare for a defendant and alleged victim to have a need to talk in criminal proceedings, and where there is, it is strongly recommended to consult an experienced criminal lawyer first.

Do all Domestic Violence Cases Go to Trial?

Not all domestic violence cases go to trial. Some domestic violence cases get withdrawn early through negotiations between defence lawyers and the prosecution, while others go to a defended hearing in the local court or trial in the district or supreme court, in Australia.

Practically, many domestic violence cases also get finalised by way of a plea of guilty, proceeding to sentence in court. When this occurs, the Court will exercise discretion on the type of penalty to impose the offender. A lower percentage of domestic violence cases go to trial (by pleading ‘not guilty’) than proceeding to sentence by way of pleading ‘guilty’.

The domestic violence cases that do go to trial are one’s that the prosecution refuse to withdraw, and defendant refuses to plead guilty to. These cases are usually one’s that have reasonable prospects of success by going to trial or defended hearing in court.

A competent criminal defence lawyer will be able to properly guide a defendant in a domestic violence charge, so that the defendant’s chances of getting the best possible outcome is maximised.

What Happens at a Domestic Violence Trial?

What really happens at a domestic violence trial in court? A domestic violence trial or defended hearing is when an accused person has pleaded ‘not guilty’ to the domestic violence charge(s).

Pleading ‘Not Guilty’ in Court

After pleading ‘not guilty’, the court eventually adjourns and allocated a hearing or trial day for the case to be heard in court.

Prosecution Opens Its Case

On the day of trial or hearing, the prosecution will open its case by calling their witnesses to the witness box to give evidence. This is done by the prosecution so that they are able to adduce their evidence during the hearing to prove that the accused person committed the alleged offences.

Prosecution Witnesses Give Evidence in chief

Each prosecution witness will give ‘evidence in chief’ where the witness will give his/her version of what they saw or heard relevant to the allegations. The prosecutor in court will ask non-leading questions to that witness in order to get the evidence in for the Judge or Magistrate to hear and accept.

Prosecution Witnesses are Cross-Examined

After the evidence in chief is complete, that same witness will be ‘cross-examined’ by the defence lawyer who will ask leading questions to test the truth, accuracy and credibility of the prosecution witness. This is a fundamental right for the defence. It is done so that the court can get a complete picture of the evidence, not just a one sided version.

After all prosecution witnesses have been cross examined by the defence, the prosecution will be given another chance to ask questions arising from the cross-examination in order to clarify any issues arising from it. This is called ‘re-examination’.

Defence Opens Its Case with Same Process

Once this is all completed, the prosecution will usually close its case. This will then allow the defence to open the defence case by calling defence witnesses including the accused to give evidence in the witness box. The same process of examination in chief, cross examination and re-examination will then take place for the defence witnesses.

After all defence witnesses have completed their evidence, the defence will close its case.

Both Sides Give Closing Submissions

After the defence closes its case, the Judge or Magistrate will provide both the prosecution and defence to give closing submissions.

Court Determines Verdict of ‘Guilty’ or ‘Not Guilty’

The Judge or Magistrate will then decide on whether the court is satisfied beyond reasonable doubt that the elements of the charge(s) the accused faces are proven to that standard.

If the court decides that the prosecution have failed to prove its case beyond reasonable doubt, the court will return a verdict of ‘not guilty’. This will result in the domestic violence charge(s) being dismissed, putting an end to the case.

If the court decided that the prosecution have succeeded in proving its case beyond reasonable doubt against the accused, the court will return a ‘guilty’ verdict, which will then result in the court determining an appropriate sentence for the offender.

A trial is usually heard in the District or Supreme Court in-front of a panel of jury members who ultimately determine ‘guilt’ or ‘innocence’. There are 12 jury members sitting who are judges of the facts. The Judge or Magistrate sitting will be the judge of the law.

A defended hearing is heard in the local court where there will be no jury panel to hear the evidence because the evidence is all heard by the one Judge or Magistrate who determines the verdict or ‘guilty’ or ‘not guilty’.

Whether the case ends up being dealt with in the local court, or district court or supreme court depends on the charge. Domestic violence murder, for example, will be heard in the Supreme Court.

Other serious domestic violence assaults are heard either in the local or district court of NSW.

Which Country Has the Most Domestic Violence?

South Africa is reported to have the largest statistics of gender-based violence in the world. This includes domestic violence and rape.

In Egypt, about 80% of surveyed women in rural areas of the nation have reported beatings, especially if the women refused sex with her husband.

70% of women in India are reported to be domestic violence victims.

Surveys conducted across the world suggest that the extent of women who’re assaulted physically by an intimidate partner substantially varies according to the country.

70% of women are domestic violence victims in India. 33% in USA, 35% in NZ and 30% in Canada. Philippines and Paraguay report numbers as few as only 10%.

How Do You Prove a Domestic Violence Case?

To prove a domestic violence case, the police will need to prove each and every element of the domestic violence charge beyond reasonable doubt in court. A suspicion that that accused committed the offence is not enough, because it must be beyond reasonable doubt.

There are many types of domestic violence charges, including stalk or intimidate, common assault and breach of AVO. Each one has different, but similar elements that need to be proven in order for the accused person to be found ‘guilty’ by the court.

By way of example, if you’re charged with domestic violence common assault, the police will be able to prove your guilt if they can prove each of the following elements beyond reasonable doubt:

  1. Your conduct caused the alleged victim to feat immediate and unlawful violence or unlawful physical force, without consent; and
  2. You were either aware of the possibility of causing this at the time, or intentionally caused this at the time.

How Does Domestic Violence Affect the Victim?

Domestic violence unfortunately impacts women, children, men, their families and the community. All are victims, as nobody benefits from it. It can cause harm in many ways including, death, trauma (psychological or emotional), drug and alcohol dependency, homelessness and physical health issues.

It also affects the family as it creates constant fear, instability, leading to family break-ups.

The community is affected because it increases the need for resources to assist those victims. The offenders go to jail, increases alcohol and drug use costing the economy approximately $4.5b a year.

Children are also victims, as it causes anxiety and depression, and developmental problems.

Consequence of Having a Domestic Violence Offence Conviction on Your Record

What happens if you receive a domestic violence criminal record against your name by the court?

  • The police can ask the court to direct that any previous offences also be recorded as domestic violence offences against that person’s name under section 12 Crimes (Domestic and Personal Violence) Act 2007 (NSW):
  • This then becomes relevant in bail applications.
  • It allows a court in the future to use the previous domestic violence offence recorded into account when determining if his/her behaviour constitutes stalking or intimidation (if it wasn’t recorded as domestic violence then the court would not ordinarily be able to do that).
  • It allows police to use the previous domestic violence records into account when deciding on whether to make a future AVO.
  • A previously recorded domestic violence record is considered an aggravating factor for a court who is sentencing the same offender in a new assault offence (even if un-related to the previous one(s)).
  • A domestic violence offence conviction will also result in the related AVO (DVO) to become final. Click here for an outline on the consequences of an AVO against you.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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