According to the Family Law Act, 1975 stated in the Federal Register of Legislation Australia, a domestic violence offence is committed when a person threatens, acts violent, or indulges in any behaviour of similar nature against a member of the person’s family and thereby causes the family member to be fearful. The relatively newer Crimes (Personal and Domestic Violence) Act 2007 defines a domestic violence offence as any offence committed by a person against the member of the family with whom the person shares or has shared a domestic relationship with.
A domestic relationship includes:
- Family members (including children) even if they don’t live with the offender
- Wives, ex-wives, husbands, ex-husbands, partners, ex-partners
- Ex-partner’s new partner
- Aboriginal or a Torres Strait Islander- Any person who is part of the extended family or a kin according to the indigenous kinship system of the person’s culture.
To understand domestic violence offences, one first has to understand the charges that constitute domestic violence. While any kind of assault, abuse, harassment or dangerous behaviour within a domestic capacity of a person is categorised as domestic violence offence, there still are certain types of domestic offences specified in the Court of Law. Examples of these offences include:
- Common Assault
- Assault Occasioning Actual Bodily Harm
- Reckless Wounding
- Stalk and Intimidate
- Malicious Damage of Property
As stated above, a domestic violence offence can include a broad range of crimes that range in severity. In fact, domestic offences do not necessarily need to be physical in nature, rather one must feel threatened by the actions of the offender. From bodily harm to verbal personal threats, any form of abuse in a domestic relationship that can make the victim apprehend violent attacks is categorized in the domestic violence category.
Although prevalent in today’s society the nature of these offences is considered severe due to the perceived a threat to the community. Hence, the Court will enforce strict penalties for all domestic violence related matters.
Depending on the severity and the nature of the domestic offence committed, penalties could include anything from a fine to a gaol sentence. The penalties for domestic violence offences are found in various sections of the Crimes Act 1900 (NSW) and the Crimes (Domestic And Personal Violence) Act 2007 and are outlined below.
- Common Assault: Although a fine (which must be paid within 28 days of judgement) is the most commonly imposed penalty by the Court, the maximum penalty for someone who is found guilty of common assault can be a gaol sentence for up to 2 years.
- Assault Occasioning Bodily Harm: Classified as a table 2 offence, Assault Occasioning Bodily Harm, if heard in a District Court, can get the offender a maximum penalty of 5 years of imprisonment.
- Reckless Wounding: A table 1 offence, Reckless Wounding attracts a maximum penalty of 10 years imprisonment. However, if the crime has been committed in company, the maximum penalty incurred is 14 years imprisonment. On the other hand, if the case is dealt in a Local Court, the maximum penalty for Reckless Wounding is a maximum of 2 years of imprisonment.
- Stalk and Intimidate: If convicted in a Local Court, the maximum penalty for someone who stalks or intimidates another person with the intention to cause mental or physical harm is imprisonment for 2 years or a fine of $5,500. However, if the conviction occurs in a District Court, the maximum duration of imprisonment is 5 years.
- Malicious Damage of Property: According to the Crimes Act 1900, the maximum sentence declared for someone found guilty of Malicious Damage of Property depends on the Court the accused is convicted in. The majority of cases are dealt in a Local Court, where the penalty depends on the monetary value of the destruction caused to the property. If the damage of property was valued at over $5,000, the maximum sentence given is of up to 24 months imprisonment, and/or a fine of up to $11,000. However, if the the damage is valued at less than $5,000, the maximum penalty imposed is imprisonment for 12 months, and/or a fine of up to $5,500, while damage worth less than $2,000 attracts a maximum penalty of a $2,200 fine. However, if the accused is convicted in a District Court the penalties are more severe in nature.
It is also not uncommon for those who are convicted of domestic violence related offences to be served with an Apprehended Domestic Violence Order (ADVO). When an ADVO is granted, it doesn’t necessarily mean that the defendant in question has a criminal record or a criminal conviction, however the adherence to strict conditions are important in order to avoid such charges. Contact our Domestic Violence Legal Services to know more about the terms and conditions of ADVO.
It is also important to be aware that as a result of the prevalence of domestic violence in today’s society, the Court treats such offence with utmost seriousness. Therefore, magistrates give high importance to ‘General Deterrence’ when sentencing domestic violence related matters. ‘General Deterrence’ puts out a message in the community that domestic violence related matters will not be dealt with casually by the court.
Additionally, after a thorough understanding of the case and the nature of the offence, the Court may also resort to alternative penalties of less severity such as in the case of Common Assault, you have the option to ask the Court to deal with your case by way of Section 10 Dismissal or Section 10 Conditional with Good Behaviour. Community Service, Intensive Correction Order and Fine are some of the other alternative penalties that can be granted to the accused of a domestic violence offence.
With an impressive experience of over 29 years, we at Benjamin & Leonardo are a dedicated team of some of the best criminal defence lawyers in Sydney.
If you or someone you know is charged with any domestic violence offence, book in a FREE consultation with us today for honest and workable advice regarding your case and penalty options.
To be found guilty of a domestic violence offence, the prosecution must prove beyond a reasonable doubt that:
- You were/are in a domestic relationship with the complainant
- You did commit the domestic violence offence. For this, the prosecution will have to submit a mini-brief encompassing the victim’s statement, any photographs of injuries, and what they say happened, and significant evidence like witnesses, your criminal record (if any), and other documents relevant to your character, background, etc.
If the aforementioned elements are proven against you and you plead guilty, the prosecution will serve the Magistrate with a Police Fact Sheet whereby you will have the opportunity to read it carefully and agree to it the conditions. If you disagree with some of the details in the fact sheet, then you should speak about them after seeking the prosecutor’s permission. It may be possible to incorporate changes if the elements you disagree with are not severe in nature. In case of big changes, you may have to go through a hearing and take the support of witnesses.
The Police Fact Sheet and other evidence documents, for example, photographs of victim’s injuries or of damaged property, must prove your involvement in the offence before the Magistrate in the Court.
With the help of supporting evidence, witnesses, and other relevant documents, the Prosecution should without a reasonable doubt be able to prove that you are fully responsible for the offence.
You are also eligible to provide the Magistrate with character references. After this, our criminal defence lawyers will have to provide the Court a sound explanation about how and why the offence took place and any vital and relevant information about yourself, for example- personal circumstances (lifestyle, work, mental and physical health issues, drug and alcohol issues, and treatment if you’re undergoing any), general character, background, current financial situation, etc.
The information about you provided from your end is often called a ‘plea in mitigation’, which is used by the Magistrate to decide the nature of penalty appropriate to your offence.
Should you be facing charges in relation to a domestic violence offence, do not hesitate to contact our dedicated team of domestic violence lawyers at Benjamin Leonardo – The Defenders for a FREE consultation.
Should you plead not guilty to the domestic violence offence that you’re charged against, the case will be adjourned to a ‘hearing date’. The prosecution must provide evidence in relation to the allegations in order to prove beyond a reasonable doubt that you did in fact commit a domestic related crime. If they are successful, you could be facing the relevant penalties for your specific offence and have to adhere to conditions imposed by an ADVO.
However, at Benjamin Leonardo – The Defenders, our team of domestic violence lawyers are dedicated to achieving the best outcome possible for your case. We will cross examine any evidence presented by the prosecution to cast doubt on the reliability of their sources and implement the relevant defence strategies to negate the claims. If we are successful, you will be found not guilty of domestic violence. However, it is important to understand that in some circumstances you may not be fully acquitted of a criminal conviction. Some defence strategies may only partially defend a claim, whereby you may be liable for an alternative crime. Despite this, the alternative punishment is generally less significant and therefore more favourable.
It can be challenging to figure out if you have a defence to the charge against you on your own, and therefore, the role of legal services is pivotal in this scenario. Be sure to consult our domestic violence lawyers immediately if you or someone you know is charged with a domestic violence. Some of the defence strategies applicable in most domestic violence offences include:
Self Defence: The person accused will not be proven guilty if the court accepts that the person acted in self-defence, or, in the defence of another person, or, in defence of property.
Duress: The defence strategy of duress is defined as unlawful coercion. Specifically speaking, duress involves forcing another party to partake in an activity they would otherwise not participate in, by use of harmful threats or grievous bodily harm.
Necessity: Applicable in circumstance if the person accused of the offence successfully proves that they acted because they sensed the situation to be urgent and because they feared that no action from their part would have resulted in serious harm or imminent danger to their life. Moreover, the act of the offence committed must be in proportion to the threat of the danger faced by the person accused.
Wrongfully Accused: Unfortunately, there are several cases reported in which the person accused is actually innocent of the offence. In such scenarios, False Accusation can be used as a defence strategy. If you have significant evidence stating that you were not involved in the crime that you are accused of, you might have a suitable defence. In some circumstances, another individual may falsely accuse the defendant in accordance to section 314 of the Crimes Act 1900 which states that any person who accuses someone of an offence they did not commit, is liable to imprisonment for 7 years.
Carrying a combined and rich experience of almost 29 years, Benjamin Leonardo – The Defenders is home to some of Sydney’s best criminal defence lawyers.
If you are facing domestic violence related charges, contact our team to arrange a FREE consultation.
Generally speaking, domestic violence offences are dealt with in the Local Court After a complainant seeks an AVO against you, you will receive a summons to appear before your Local Court. However, regardless of the Court that you’re summoned to appear in, you will have the support of the best criminal defence lawyers at Benjamin Leonardo – The Defenders.