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Thursday, 15 November 2012

Legislation Watch: Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012

Police Pursuit Amendments

Today the Victorian government announced their intention to create a new offence for drivers who avoid stopping their car when the police want them to.

The proposed offence is contained in the Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012. The Explanatory Memorandum for it can be found here. A forced commencement date of 1 Jul 2013 is proposed.

The new offence is intended to be inserted into the Crimes Act 1958, and provides:

319AA Dangerous or negligent driving while pursued by police

(1) A person must not drive a motor vehicle dangerously or negligently if he or she knows, or ought reasonably to know, that—

(a) he or she has been given a direction to stop the vehicle by a member of the police force; and

(b) a member of the police force is pursuing the vehicle.
Penalty: 3 years imprisonment.

(2) For the purposes of subsection (1)—

(a) a person drives a motor vehicle dangerously if he or she drives the vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case; and

(b) a person drives a motor vehicle negligently if he or she fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case; and

(c) a member of the police force may be pursuing a motor vehicle even if not travelling at the same speed as the vehicle; and

(d) it is irrelevant that the police pursuit is suspended or terminated before the motor vehicle being pursued stops.

Offences for failing to stop while being chased by the police already exist in the Road Safety Act at s 64A and, to a lesser extent, at Rule 304 of the Road Rules. This new offence is also punishable by a minimum licence disqualification of 12 months, and the impoundment of the vehicle as a Tier 1 offence under s 84C(1).

Whatever the merits of the legislation, the announcement couldn't be more timely, with another pursuit ending in injury (this time to occupants of both cars) this afternoon.

Family Violence Amendments

The Bill also proposes the introduction of new indictable offences for contravention of Family Violence Safety Notices and intervention orders.

37A Contravention of notice intending to cause harm or fear for safety

(1) In this section—

mental harm includes—

(a) psychological harm; and

(b) suicidal thoughts.
(2) A person who—

(a) has been served with a family violence safety notice; and

(b) has had an explanation of the notice given to him or her in accordance with section 35—
must not contravene the notice intending to cause, or knowing that his or her conduct will probably cause—

(c) physical or mental harm to the protected person, including self-harm; or

(d) apprehension or fear in the protected person for his or her own safety or that of any other person.
Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.

At s 123A it's proposed to introduce a new indictable offence for contravention of an intervention order, also making it punishable by a maximum 5 years imprisonment. Like the police chase offence, these new offences reproduce offences already in existence, with minor additional evidentiary requirements but a significantly bigger maximum penalty.

When the offence of breaching an intervention order existed at s 22 of the Crimes (Family Violence) Act 1987 it was punishable (at least in theory) by a maximum penalty of five years imprisonment. But since it was a summary offence, s 113A of the Sentencing Act 1991 limited the maximum penalty that could be imposed by any court to 2 years. (An anomaly discussed by Chernov JA in R v Duncan [2007] VSCA 137, at 13). Consequently, when the Family Violence Protection Act 2008 was enacted it appeared to cut in half the maximum penalty for that type of offence even if, in reality, it had no real effect.

The Bill also proposes a new offence for persistent and repeated breaches of safety notices and intervention orders:

125A Persistent contravention of notices and orders

(1) A person must not persistently contravene a family violence safety notice or a family violence intervention order.

Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine 20 (600 penalty units maximum) or both.

(2) To prove an offence against subsection (1) it is necessary to prove that—
(a) the accused engaged in conduct that 25 would constitute an offence against section 37 or 123; and

(b) on at least 2 other occasions within a period of 28 days immediately preceding the conduct referred to in 30 paragraph (a), the accused engaged in conduct that would constitute an offence against section 37 or 123 in relation to—

(i) the same protected person; or

(ii) the same family violence safety notice or family violence intervention order (whether an interim order or a final order), whether or not in relation to the same protected person; or

(iii) a family violence safety notice and a family violence intervention order (whether an interim order or a final order) made on the family violence safety notice as an application, whether or not in relation to the same protected person; and
(c) on each of the occasions referred to in paragraphs (a) and (b) the accused knew or ought to have known that the conduct constituted a contravention of the family violence safety notice or family violence intervention order (as the case requires).

(3) In a proceeding for an offence against subsection (1), a defence available under section 37(3) or 123(3) is a defence to an allegation that the accused engaged in conduct that would constitute an offence against section 37 or 123 (as the case requires).

(4) If on the trial of a person charged with an offence against subsection (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused engaged in conduct during that period which constitutes an offence against section 37 or 123, the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly.
Sub-section (4) is an extension of the powers of a trial court under s 239 of the Criminal Procedure Act 2009. In the Magistrates' Court it will presumably still be necessary for the prosecution to lay both this new charge, and each individual charge said to make up the persistent behaviour, if they wish to rely on it as an alternative.

All of these new indictable offences are triable summarily, by virtue of s 28(1)(b)(iii) of the Criminal Procedure Act 2009.

The final point to note is that clause 4 intends to extend the maximum duration of Safety Notices from the current 72 hours (3 days) to 120 hours (5 days).

1 comment:

Anonymous said...

The dangerous and negligent driving provisions come in today.