ByLawyers News and Updates

Bail and sentencing – WA

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Bail and sentencing options have changed with commencement of the final tranche of amendments under the Family Violence Legislation Reform Act 2024.

From 18 December 2024 Bail authorities can impose electronic monitoring as part of bail and sentencing conditions for certain family violence offenders. In some cases,  an electronic monitoring condition must be applied.

Bail

Schedule 1 of the Bail Act 1982 creates a rebuttable presumption against bail being granted for certain offences. For offences in these categories, the presumption can be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied that bail may properly be granted.

The amendments create new circumstances where the presumption applies, namely to family violence offences as defined in clause 3F(1A) and offenders who have been declared a serial family violence offender as defined in s 3 of the Act. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition.

Clause 3G creates a rebuttable presumption against bail for a person charged with a family violence offence (category A) as defined in the clause who is bound by a family violence restraining order that protects a victim of the current offence. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition. See Schedule 1 Part D and Part E.

Sentencing

When the court is sentencing:

  • for a family violence offence and the offender has been declared a serial family violence offender, if making a CSI the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances;
  • an offender who has been declared a serial family violence offender, if making a PSO the court must consider and may impose an electronic monitoring requirement for the term of the PSO, and must do so if the offence is a family violence offence;
  • an offender for a family violence offence or who has been declared a serial family violence offender, if when making a CBO or an ISO the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances.

Publication updates

The By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly. See Bail and Sentencing.

For information on legislative amendments and publication updates arising from the previously commenced parts of the amending Act, see the By Lawyers Restraining Order (WA) guide, and our previous News & Updates post

Family violence – WA

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Changes under Part 7 of the Family Violence Legislation Reform Act 2024 (WA) (the Reform Act) commenced on 14 November 2024.

These provisions amend critical definitions in the Restraining Orders Act 1997 (the Act). The Act provides for family violence restraining orders.

Sections 3 to 6A of the Act define all relevant terms used in the Act, including what constitutes family violence. The amendments introduce the concept that a pattern of behaviour can constitute family violence, as well as a single act of violence or a series of such acts.

Section 5A(1) of the Act, as amended by the Reform Act, now defines family violence as:

(a) violence, or a threat of violence, by a person towards a family member of the person; or

(b) any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.

The Act now makes it clear that relevant behaviour, or a pattern of behaviour, can occur over a period of time, may be more than one act or a series of acts that cumulatively coerce or control a family member or causes them to be fearful, and is to be considered in the context of the parties relationship as a whole: s 5A(1A).

Section 5A(2) of the Act provides a non-exhaustive list of examples of behaviour, or patterns of behaviour, that may constitute family violence.

The By Lawyers Restraining Orders (WA) publication has been updated accordingly.

Other amendments under the Reform Act that affect bail and the way the criminal justice system deals with mentally impaired accused are yet to commence. The By Lawyers Magistrates Court Criminal (WA) guide will be updated when those further changes are proclaimed to commence.

Serial family violence – WA

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From 1 January 2021 new provisions regarding serial family violence commence in WA. These are the final provisions of the Family Violence Legislation Reform Act 2020. Various sections of this amending Act have commenced over the course of the year. The amendments affect the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Serial family violence

From 1 January 2021 there is a presumption against bail for a person charged with a ‘family violence offence’ who has been declared a ‘serial family violence offender’. These terms are defined in s 3 of the Bail Act.

The presumption may be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied bail may properly be granted.

Previous amendments

Practitioners will recall that the previously commenced provisions of the amending Act include:

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a ‘family relationship’ with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act 1997 define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly. The changes to these publications will be live from 1 January 2021.

Restraining orders – New publication – WA

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By Lawyers are delighted to announce the release of our newest publication, Restraining orders in Western Australia.

Our new guide covers all types of restraining orders available under the Restraining Orders Act 1997 including:

  • family violence restraining orders (FVRO);
  • violence restraining orders (VRO) – when an act of abuse has been, or is feared will be, committed; or
  • misconduct restraining orders (MRO) – when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

With detailed commentary and precedents, the new publication provides everything a practitioner will need to represent either a respondent or a person seeking to be protected in proceedings for restraining orders in the Magistrate’s Court or Children’s Court.

The commentary sets out important factors which influence an application, including the presence of a family relationship and other important eligibility criteria, the service and duration of orders as well as the types of restraints that a magistrate may place on the person bound.

The commentary also provides valuable guidance on how to negotiate restraining orders at court, as well as other valuable strategies such as a conduct order on a without admissions basis and the use of undertakings. Appeals and costs orders are also covered.

The commentary also assists with advising a client that is bound by a restraining order on the offences and penalties which may apply.

Other issues discussed in the commentary include:

  • interim orders;
  • telephone applications;
  • the role of police and welfare officers in making a restraining order applications;
  • restraining orders in bail applications and family law proceedings;
  • interstate applications and the National Domestic Violence Orders Scheme.

Key precedents include:

  •  The application forms as well as example content precedents to use for the application;
  • Undertakings; and
  • Instructions to oppose or consent to an order.

By Lawyers is always working to increase our content for subscribers. Our new guide for WA Restraining orders is available in the WA Criminal guide from a LEAP matter via the Guides & Precedents tab, or on the By Lawyers website.

 

 

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