2022

THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Family Violence Legislation Amendment Bill 2022

Contents

 Page

Part 1 Preliminary

 1 Name of Act

 2 Commencement

 3 Legislation amended

Part 2 Crimes Act 1900

 4 New section 9A

 5 Sections 15 (3), 19 (2), 20 (2), 21 (2), 23 (2) and 24 (2), note

 6 Common assault
New section 26 (2)

 7 Acts endangering life etc
Section 27 (3)

 8 Acts endangering health etc
Section 28 (2)

 9 Culpable driving of motor vehicle
Section 29 (3), note

 10 Threat to kill
Section 30 (b)

 11 Threat to inflict grievous bodily harm
Section 31 (b)

 12 Demands accompanied by threats
Section 32 (1)

 13 Section 32 (2)

 14 Stalking
Section 35 (1), penalty

 15 Section 48A heading

 16 Section 48A (6), definition of applied provisions

 17 Section 48B heading

 18 Section 48B (1)

 19 Table 48B, item 4, column 3, 6th dot point

 20 Table 48B, new items 4A and 4B

 21 Section 48B (2)

 22 New sections 48C and 48D

 23 Alternative verdicts for certain other offences against the person
Table 49

 24 Section 50 heading

 25 Section 50 (1), new definition of aggravated offence

 26 Sexual assault in the first degree
New section 51 (1A)

 27 New section 51 (3)

 28 Sexual assault in the second degree
New section 52 (1A)

 29 New section 52 (3)

 30 Sexual assault in the third degree
New section 53 (1A)

 31 New section 53 (3)

 32 Sexual intercourse without consent
New section 54 (1A)

 33 New section 54 (2A)

 34 Sexual intercourse with young person
New section 55 (1A)

 35 New section 55 (2A)

 36 Section 56 heading

 37 Act of indecency in the first degree
New section 57 (2)

 38 Act of indecency in the second degree
New section 58 (2)

 39 Act of indecency in the third degree
New section 59 (2)

 40 Act of indecency without consent
New section 60 (1A)

 41 New section 60 (2A)

 42 Acts of indecency with young people
New section 61 (1A)

 43 New section 61 (2A)

 44 Intimate observations or capturing visual data etc
Section 61B (1), penalty

 45 Section 61B (5), penalty

 46 Abduction
New section 63 (2)

 47 Using child for production of child exploitation material etc
Section 64 (1), penalty

 48 Section 64 (3), penalty

 49 Trading in child exploitation material
Section 64A (1), penalty

 50 Possessing child exploitation material
Section 65 (1), penalty

 51 Grooming and depraving young people
Section 66 (1), penalty

 52 Section 66 (3), penalty

 53 Failure to report child sexual offence
Section 66AA (8), definition of applied provisions

 54 Making false report about child sexual offence
Section 66AB (1), penalty

 55 Failure by person in authority to protect child or young person from sexual offence
Section 66A (5), definition of applied provisions

 56 New sections 72AA and 72AB

 57 Definitions—pt 3A
Section 72A, new definition of aggravated offence

 58 Non-consensual distribution of intimate images
Section 72C, penalty

 59 Distribution of intimate image of young person
Section 72D (1), penalty

 60 Threaten to capture or distribute intimate images
Section 72E (1), penalty

 61 New sections 72EA and 72EB

 62 Sexual servitude offences
Section 79 (1), penalty and note

 63 Section 79 (2), penalty and note

 64 Deceptive recruiting for sexual services
Section 80, penalty and note

 65 Sections 81 and 82

 66 Destroying or damaging property
Section 116 (1), penalty

 67 Section 116 (2), penalty

 68 Section 116 (3), penalty

 69 New section 116 (4) to (7)

 70 Section 123

 71 Interviewing children and young people about offences
Section 252G (3), new definition of family member

 72 Summary disposal of certain cases at prosecutor’s election
New section 374 (1A)

 73 New section 374 (6A)

 74 New section 434C

 75 Dictionary, definitions of aggravated offence and alternative offence

 76 Dictionary, new definitions

Part 3 Crimes (Sentencing) Act 2005

 77 New section 51A

 78 Victim impact statements—effect
Section 53 (3) and (4)

Part 4 Evidence (Miscellaneous Provisions) Act 1991

 79 Section 38 (2)

 80 Special requirements—particular proceedings
Section 43

 81 Table 43.1, item 1, column 3

 82 Part 4.4 heading

 83 Division 4.4.3 heading

 84 Meaning of protected confidence—div 4.4.3
Section 79A (1)

 85 Section 79A (2)

 86 Section 79A (5), new definition of family violence offence

 87 No protected confidence immunity for medical information
Section 79K (a)

 88 No protected confidence immunity for communications for criminal investigations and proceedings
Section 79L

 89 New chapter 6A

 90 Dictionary, definition of family member

 91 Dictionary, new definitions

 92 Further amendments, mentions of division 4.4.3 (Sexual offence proceedings—protection of counselling communications)

Part 5 Family Violence Act 2016

 93 Meaning of family violence
New section 8 (2) (f)

 94 New section 156

 95 Dictionary, definition of family violence offence

Part 6 Working with Vulnerable People (Background Checking) Act 2011

 96 Disqualifying offences
Schedule 3, parts 3.2 and 3.3

Schedule 1 Consequential amendments

Part 1.1 Children and Young People Act 2008

Part 1.2 Crimes (Child Sex Offenders) Act 2005

Part 1.3 Evidence Act 2011

Part 1.4 Sex Work Act 1992

Part 1.5 Supreme Court Act 1933

2022

THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Family Violence Legislation Amendment Bill 2022

A Bill for

An Act to amend legislation about family violence, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1 Preliminary

This Act is the Family Violence Legislation Amendment Act 2022.

This Act commences on the 7th day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the following legislation:

 Crimes Act 1900

 Crimes (Sentencing) Act 2005

 Evidence (Miscellaneous Provisions) Act 1991

 Family Violence Act 2016

 Working With Vulnerable People (Background Checking) Act 2011.

Note This Act also amends other legislation (see sch 1).

Part 2 Crimes Act 1900

in part 2, insert

9A Meaning of aggravated offence—pt 2

In this part:

aggravated offence—

 (a) for an offence committed against a pregnant woman—see section 48A (2); and

 (b) for an offence involving family violence—see section 48C (2).

substitute

Note Section 48A (Aggravated offences—pt 2 offences against pregnant women) and s 48C (Aggravated offences—pt 2 offences involving family violence) make provision in relation to an aggravated offence against this section.

insert

 (2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 3 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

omit everything after paragraph (h), substitute

is guilty of an offence punishable, on conviction, by imprisonment for—

 (i) in the case of an aggravated offence against this section—13 years; or

 (j) in any other case—10 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

omit everything after paragraph (e), substitute

is guilty of an offence punishable, on conviction, by imprisonment for—

 (f) in the case of an aggravated offence against this section—7 years; or

 (g) in any other case—5 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Note Section 48A (Aggravated offences—pt 2 offences against pregnant women) and s 48C (Aggravated offences—pt 2 offences involving family violence) make provision in relation to an aggravated offence against this section.

omit everything after paragraph (b), substitute

the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for—

 (c) in the case of an aggravated offence against this section—13 years; or

 (d) in any other case—10 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

omit everything after paragraph (b), substitute

the firstmentioned person is guilty of an offence punishable, on conviction, by imprisonment for—

 (c) in the case of an aggravated offence against this section—7 years; or

 (d) in any other case—5 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

omit

for 20 years.

substitute

for—

 (d) in the case of an aggravated offence against this section—25 years; or

 (e) in any other case—20 years.

omit

for 10 years.

substitute

for—

 (d) in the case of an aggravated offence against this section—13 years; or

 (e) in any other case—10 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence against this section—

 (i) imprisonment for 7 years if—

 (A) the offence involved a contravention of an injunction or other order made by a court; or

 (B) the offender was in possession of an offensive weapon; or

 (ii) in any other case—imprisonment for 3 years; or

 (b) for an offence against this section other than an aggravated offence—

 (i) imprisonment for 5 years if—

 (A) the offence involved a contravention of an injunction or other order made by a court; or

 (B) the offender was in possession of an offensive weapon; or

 (ii) in any other case—imprisonment for 2 years.

Note Section 48C (Aggravated offences—pt 2 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

48A Aggravated offences—pt 2 offences against pregnant women

omit

substitute

48B Alternative verdicts for aggravated offences—pt 2 offences against pregnant women

substitute

 (1) This section applies if, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 48B, the trier of fact—

 (a) is not satisfied that the defendant committed the aggravated offence; but

 (b) is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence).

 (1A) The trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to the finding of guilt.

substitute

 section 26 (Common assault), simple offence

insert

omit

insert

48C Aggravated offences—pt 2 offences involving family violence

 (1) This section applies to an offence against any of the following provisions:

 (a) section 15 (Manslaughter);

 (b) section 19 (Intentionally inflicting grievous bodily harm);

 (c) section 20 (Recklessly inflicting grievous bodily harm);

 (d) section 21 (Wounding);

 (e) section 23 (Inflicting actual bodily harm);

 (f) section 24 (Assault occasioning actual bodily harm);

 (g) section 26 (Common assault);

 (h) section 27 (Acts endangering life etc);

 (i) section 28 (Acts endangering health etc);

 (j) section 29 (Culpable driving of motor vehicle);

 (k) section 30 (Threat to kill);

 (l) section 31 (Threat to inflict grievous bodily harm);

 (m) section 32 (Demands accompanied by threats);

 (n) section 35 (Stalking).

 (2) The offence is an aggravated offence if the offence involves family violence.

 (3) If the prosecution intends to prove that the offence is an aggravated offence, the factors of aggravation must be stated in the charge.

 (4) To remove any doubt—

 (a) it is not necessary for the prosecution to prove that the defendant had a fault element in relation to any factor of aggravation; and

 (b) the Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence mentioned in subsection (1), whether or not it is an aggravated offence.

 (5) In this section:

factor of aggravation means the matter mentioned in subsection (2).

Note The following sections also provide that particular offences involving family violence are aggravated offences:

 (a) s 72AA (Aggravated offences—pt 3 offences involving family violence);

 (b) s 72EA (Aggravated offences—pt 3A offences involving family violence);

 (c) s 116 (Destroying or damaging property).

48D Alternative verdicts for aggravated offences—offences involving family violence

 (1) This section applies if, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 48D, the trier of fact—

 (a) is not satisfied that the defendant committed the aggravated offence; but

 (b) is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence).

 (2) The trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to that finding of guilt.

Table 48D

substitute

Table 49

substitute

50 Definitions—pt 3

insert

aggravated offence, for an offence involving family violence—see section 72AA (2).

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 21 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (3) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 25 years.

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 18 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (3) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 21 years.

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 15 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (3) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 18 years.

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 15 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2A) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 18 years.

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 21 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2A) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 18 years.

substitute

56 Persistent sexual abuse of child or young person under special care

insert

 (2) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 19 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 15 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 13 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 9 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2A) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 11 years.

insert

 (1A) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 15 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2A) However, for an aggravated offence against subsection (2), the maximum penalty is imprisonment for 13 years.

substitute

Maximum penalty:

 (a) for an aggravated offence—250 penalty units, imprisonment for 3 years or both; or

 (b) in any other case—200 penalty units, imprisonment for 2 years or both.

substitute

Maximum penalty:

 (a) for an aggravated offence—250 penalty units, imprisonment for 3 years or both; or

 (b) in any other case—200 penalty units, imprisonment for 2 years or both.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

 (2) However, for an aggravated offence against subsection (1), the maximum penalty is imprisonment for 13 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—1 900 penalty units, imprisonment for 19 years or both; or

 (b) in any other case—1 500 penalty units, imprisonment for 15 years or both.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—1 300 penalty units, imprisonment for 13 years or both; or

 (b) in any other case—1 000 penalty units, imprisonment for 10 years or both.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—1 500 penalty units, imprisonment for 15 years or both; or

 (b) in any other case—1 200 penalty units, imprisonment for 12 years or both.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—900 penalty units, imprisonment for 9 years or both; or

 (b) in any other case—700 penalty units, imprisonment for 7 years or both.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for a 1st offence against a person under 10 years—

 (i) for an aggravated offence—imprisonment for 11 years; or

 (ii) in any other case—imprisonment for 9 years; or

 (b) for a 1st offence against a young person 10 years or older—

 (i) for an aggravated offence—imprisonment for 9 years; or

 (ii) in any other case—imprisonment for 7 years; or

 (c) for a 2nd or subsequent offence against a person under 10 years—

 (i) for an aggravated offence—imprisonment for 15 years; or

 (ii) in any other case—imprisonment for 12 years; or

 (d) for a 2nd or subsequent offence against a young person 10 years or older—

 (i) for an aggravated offence—imprisonment for 13 years; or

 (ii) in any other case—imprisonment for 10 years.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—900 penalty units, imprisonment for 9 years or both; or

 (b) in any other case—700 penalty units, imprisonment for 7 years or both.

omit

substitute

Maximum penalty:

 (a) for an aggravated offence—125 penalty units, imprisonment for 16 months or both; or

 (b) in any other case—100 penalty units, imprisonment for 12 months or both.

Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.

omit

in part 3, insert

72AA Aggravated offences—pt 3 offences involving family violence

 (1) This section applies to an offence against any of the following provisions:

 (a) section 51 (Sexual assault in the first degree);

 (b) section 52 (Sexual assault in the second degree);

 (c) section 53 (Sexual assault in the third degree);

 (d) section 54 (Sexual intercourse without consent);

 (e) section 55 (Sexual intercourse with young person);

 (f) section 57 (Act of indecency in the first degree);

 (g) section 58 (Act of indecency in the second degree);

 (h) section 59 (Act of indecency in the third degree);

 (i) section 60 (Act of indecency without consent);

 (j) section 61 (Acts of indecency with young people);

 (k) section 61B (Intimate observations or capturing visual data etc);

 (l) section 63 (Abduction);

 (m) section 64 (Using child for production of child exploitation material etc);

 (n) section 64A (Trading in child exploitation material);

 (o) section 65 (Possessing child exploitation material);

 (p) section 66 (Grooming and depraving young people);

 (q) section 66AB (Making false report about child sexual offence).

 (2) The offence is an aggravated offence if the offence involves family violence.

 (3) If the prosecution intends to prove that the offence is an aggravated offence, the factors of aggravation must be stated in the charge.

 (4) To remove any doubt—

 (a) it is not necessary for the prosecution to prove that the defendant had a fault element in relation to any factor of aggravation; and

 (b) the Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence mentioned in subsection (1), whether or not it is an aggravated offence, unless the chapter applied to the offence before the commencement of this section.

Note The Criminal Code does not apply to offences against this part that were offences in force before 1 January 2003 unless the offence is omitted and remade (see Criminal Code, s 8).

 (5) In this section:

factor of aggravation means the matter mentioned in subsection (2).

Note The following sections also provide that particular offences involving family violence are aggravated offences:

 (a) s 48C (Aggravated offences—pt 2 offences involving family violence);

 (b) s 72EA (Aggravated offences—pt 3A offences involving family violence);

 (c) s 116 (Destroying or damaging property).

72AB Alternative verdicts for aggravated offences—offences involving family violence

 (1) This section applies if, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 72AB, the trier of fact—

 (a) is not satisfied that the defendant committed the aggravated offence; but

 (b) is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence).

 (2) The trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to that finding of guilt.

Table 72AB

insert

aggravated offence, for an offence involving family violence—see section 72EA (2).

substitute

Maximum penalty:

 (a) for an aggravated offence—400 penalty units, imprisonment for 4 years or both; or

 (b) in any other case—300 penalty units, imprisonment for 3 years or both.

Note Section 72EA (Aggravated offences—pt 3A offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—600 penalty units, imprisonment for 6 years or both; or

 (b) in any other case—500 penalty units, imprisonment for 5 years or both.

Note Section 72EA (Aggravated offences—pt 3A offences involving family violence) makes provision in relation to an aggravated offence against this section.

substitute

Maximum penalty:

 (a) for an aggravated offence—400 penalty units, imprisonment for 4 years or both; or

 (b) in any other case—300 penalty units, imprisonment for 3 years or both.

Note Section 72EA (Aggravated offences—pt 3A offences involving family violence) makes provision in relation to an aggravated offence against this section.

insert

72EA Aggravated offences—pt 3A offences involving family violence

 (1) This section applies to an offence against any of the following provisions:

 (a) section 72C (Non-consensual distribution of intimate images);

 (b) section 72D (Distribution of intimate image of young person);

 (c) section 72E (Threaten to capture or distribute intimate images).

 (2) The offence is an aggravated offence if the offence involves family violence.

 (3) If the prosecution intends to prove that the offence is an aggravated offence, the factors of aggravation must be stated in the charge.

 (4) To remove any doubt, it is not necessary for the prosecution to prove that the defendant had a fault element in relation to any factor of aggravation.

 (5) In this section:

factor of aggravation means the matter mentioned in subsection (2).

Note  The following sections also provide that particular offences involving family violence are aggravated offences:

 (a) s 48C (Aggravated offences—pt 2 offences involving family violence);

 (b) s 72AA (Aggravated offences—pt 3 offences involving family violence);

 (c) s 116 (Destroying or damaging property).

72EB Alternative verdicts for aggravated offences—offences involving family violence

 (1) This section applies if, in a prosecution for an aggravated offence mentioned in column 2 of an item in table 72EB, the trier of fact—

 (a) is not satisfied that the defendant committed the aggravated offence; but

 (b) is satisfied beyond reasonable doubt that the defendant committed an offence mentioned in column 3 of the item (the alternative offence).

 (2) The trier of fact may find the defendant guilty of the alternative offence but only if the defendant has been given procedural fairness in relation to the finding of guilt.

Table 72EB

substitute

Maximum penalty:

 (a) if a person who enters or remains in sexual servitude is younger than 18 years—imprisonment for 19 years; or

 (b) in any other case—imprisonment for 15 years.

substitute

Maximum penalty:

 (a) if a person in sexual servitude involved with the business is younger than 18 years—imprisonment for 19 years; or

 (b) in any other case—imprisonment for 15 years.

substitute

Maximum penalty:

 (a) if the deceived person is younger than 18 years old—imprisonment for 9 years; or

 (b) in any other case—imprisonment for 7 years.

substitute

81 Sexual servitude offence etc against person younger than 18 years—charges and proof

In a prosecution for an offence against this part, if the prosecution intends to prove that the offence was committed against a person younger than 18 years old—

 (a) the allegation that the offence was committed against a person younger than 18 years old must be stated in the charge; and

 (b) the prosecution must prove that the defendant intended to commit, or was reckless about committing, the offence against a person younger than 18 years old.

82 Alternative verdicts—sexual servitude offence etc

 (1) This section applies if, in a prosecution for an offence against section 79 or section 80, the trier of fact—

 (a) is not satisfied that the defendant committed the offence; but

 (b) is satisfied beyond reasonable doubt that the defendant committed another offence against the section carrying a lesser penalty than the offence charged.

 (2) The trier of fact may find the defendant guilty of the other offence but only if the defendant has been given procedural fairness in relation to the finding of guilt.

substitute

Maximum penalty:

 (a) for an aggravated offence—imprisonment for 25 years; or

 (b) in any other case—imprisonment for 20 years.

substitute

Maximum penalty:

 (a) for an aggravated offence—380 penalty units, imprisonment for 19 years or both; or

 (b) in any other case—300 penalty units, imprisonment for 15 years or both.

substitute

Maximum penalty:

 (a) for an aggravated offence—60 penalty units, imprisonment for 3 years or both; or

 (b) in any other case—50 penalty units, imprisonment for 2 years or both.

insert

 (4) An offence against this section is an aggravated offence if the offence involves family violence.

 (5) If the prosecution intends to prove that the offence is an aggravated offence, the factor of aggravation must be stated in the charge.

 (6) To remove any doubt—

 (a) it is not necessary for the prosecution to prove that the defendant had a fault element in relation to any factor of aggravation; and

 (b) the Criminal Code, chapter 2 (other than the applied provisions) does not apply to an offence against this section, whether or not it is an aggravated offence.

 (7) In this section:

factor of aggravation means the matter mentioned in subsection (4).

Note  The following sections also provide that particular offences involving family violence are aggravated offences:

 (a) s 48C (Aggravated offences—pt 2 offences involving family violence);

 (b) s 72AA (Aggravated offences—pt 3 offences involving family violence);

 (c) s 72EA (Aggravated offences—pt 3A offences involving family violence).

substitute

123 Alternative verdicts—criminal damage to property offences

 (1) This section applies if, in a prosecution for an offence against this division, the trier of fact—

 (a) is not satisfied that the defendant committed the offence; but

 (b) is satisfied beyond reasonable doubt that the defendant committed another offence against this division carrying a lesser penalty than the offence charged.

 (2) The trier of fact may find the defendant guilty of the other offence but only if the defendant has been given procedural fairness in relation to the finding of guilt.

insert

family member—see the Family Violence Act 2016, section 9.

insert

 (1A) For subsection (1) (a), the penalty of imprisonment for an offence charged as an aggravated offence because it involves family violence is the penalty for the simple offence.

insert

 (6A) In sentencing or otherwise dealing with a defendant in relation to an offence that is an aggravated offence because it involves family violence, the court must treat the family violence as an aggravating factor for the offence, subject to the limitation on the penalty under subsection (7).

Example

A defendant is charged with aggravated assault occasioning actual bodily harm under s 24 because the offence involves family violence. The prosecutor makes an election to have the case disposed of summarily, based on the maximum penalty of 5 years imprisonment for the simple offence. The court convicts the defendant and must impose a sentence or otherwise deal with the defendant in a way that, subject to the limitation on penalty in s (7), acknowledges the objective seriousness of family violence.

insert

434C Aggravated offence may allege more than 1 factor of aggravation

 (1) A charge for an offence against this Act that the prosecution intends to prove is an aggravated offence may state more than 1 relevant factor of aggravation for the offence

Example

A defendant is charged with 1 count of assault occasioning actual bodily harm under s 24. The complainant is a pregnant woman and also a family member of the offender. The prosecution intends to prove the offence is an aggravated offence, relying on s 48A and s 72AA. The charge under s 24 may state the relevant factors of aggravation as an assault against a pregnant woman and an assault involving family violence.

 (2) In this section:

relevant factor of aggravation—

 (a) for an offence mentioned in section 48A (1) (Aggravated offences—pt 2 offences against pregnant women)—see section 48A (6); and

 (b) for an offence mentioned in section 48C (1) (Aggravated offences—pt 2 offences involving family violence)—see section 48C (5); and

 (c) for an offence mentioned in section 72AA (1) (Aggravated offences—pt 3 offences involving family violence)—see section 72AA (5); and

 (d) for an offence mentioned in section 72EA (1) (Aggravated offences—pt 3A offences involving family violence)—see section 72EA (5); and

 (e) for an offence against section 116 (Destroying or damaging property)—see section 116 (7).

substitute

aggravated offence—

 (a) for part 2 (Offences against the person)—

 (i) for an offence committed against a pregnant woman—see section 48A (2); and

 (ii) for an offence involving family violence—see section 48C (2); and

 (b) for part 3 (Sexual offences)—see section 72AA (2); and

 (c) for part 3A (Intimate image abuse)—see section 72EA (2).

alternative offence, for part 13 (Unfitness to plead and mental impairment)—see section 300 (1).

insert

applied provisions—see the Criminal Code, section 10 (1).

family violence—see the Family Violence Act 2016, section 8.

fault element—see the Criminal Code, section 17.

simple offence, in relation to a provision, means an offence against the provision that is not an aggravated offence against the provision.

Part 3 Crimes (Sentencing) Act 2005

51A Victim impact statements—adjournment of proceeding to allow preparation

 (1) If the prosecution in a sentencing proceeding for a serious offence requests an adjournment for the preparation of a victim impact statement, the court must grant the adjournment for a reasonable period to allow the statement’s preparation.

 (2) However, the court must not adjourn the proceeding if satisfied that special circumstances justify refusing the adjournment.

 (3) In this section:

serious offence means an offence punishable by imprisonment for longer than 5 years.

substitute

Note The Evidence (Miscellaneous Provisions) Act 1991, ch 6A deals with cross-examination of the maker of a victim impact statement.

Part 4 Evidence (Miscellaneous Provisions) Act 1991

substitute

38A Meaning of family violence offence—ch 4

In this chapter:

family violence offence—see the Family Violence Act 2016, dictionary.

omit

A provision mentioned in column 3 of a table for a proceeding

substitute

A provision mentioned in column 3 of a table in this section, for a particular proceeding,

after 3rd dot point, insert

 div 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)

substitute

Part 4.4 Special requirements—sexual offence and family violence offence proceedings

substitute

Division 4.4.3 Sexual and family violence offence proceedings—protection of counselling communications

after

sexual offence

insert

or family violence offence

substitute

 (2) A counselling communication is a protected confidence even if––

 (a) it is made before the happening, or alleged happening, of the acts constituting the sexual offence or family violence offence; or

 (b) it is not made in relation to––

 (i) the sexual offence or any sexual offence; or

 (ii) a condition arising from the sexual offence or any sexual offence; or

 (iii) the family violence offence or any family violence offence; or

 (iv) a condition arising from the family violence offence or any family violence offence.

insert

family violence offence includes alleged family violence offence.

after

sexual offence

insert

or family violence offence

after

sexual offence

insert

or family violence offence

insert

Chapter 6A Victim impact statements

95 Definitions—ch 6

In this chapter—

principal proceeding, for a victim impact statement, means the proceeding for which the statement was made.

victim impact statement—see the Crimes (Sentencing) Act 2005, section 47.

96 Victim impact statements—cross-examination in principal proceeding

 (1) The court must not allow the defence to cross-examine the maker of a victim impact statement about the contents of the statement before a finding of guilt has been made in the principal proceeding, unless the court is satisfied that the statement has substantial probative value to justify allowing the cross-examination.

 (2) The court must not allow the defence to cross-examine the maker about the contents of the statement after a finding of guilt has been made in the principal proceeding unless—

 (a) a lawyer representing the offender applies for leave to conduct the cross-examination, or if the offender is not legally represented the offender indicates to the court the nature of the proposed cross-examination; and

 (b) the court is satisfied that the cross-examination would materially affect the likely sentence to be imposed on an offender; and

 (c) the court gives the defence leave to cross-examine the maker.

 (3) In this section:

defence means—

 (a) any lawyer representing a defendant or offender; or

 (b) if the defendant or offender is not legally represented—the defendant or offender.

97 Victim impact statements—use in other proceeding

 (1) A victim impact statement must not be used in a proceeding other than the principal proceeding unless—

 (a) a finding of guilt has been made in the principal proceeding; or

 (b) the court hearing the principal proceeding—

 (i) is satisfied, on application by a party seeking to use the statement in another proceeding, that the statement has substantial probative value to justify the party’s use of the statement; and

 (ii) makes an order allowing the statement to be used.

 (2) An order under subsection (1) (b) (ii) may include any conditions the court considers appropriate having regard to the nature of the alleged offence and the circumstances of the maker of the statement.

substitute

family member, for part 4.2 (What special requirements apply to particular proceedings)—see the Family Violence Act 2016, section 9.

insert

family violence offence, for chapter 4 (Sexual, violent and family violence offence proceedings)—see the Family Violence Act 2016, dictionary.

principal proceeding, for chapter 6A (Victim impact statements)—see section 95.

victim impact statement, for chapter 6A (Victim impact statements)—see the Crimes (Sentencing) Act 2005, section 47.

omit

division 4.4.3 (Sexual offence proceedings—protection of counselling communications)

substitute

division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)

in

dictionary, definitions of

civil proceeding

counselling

counsellor

criminal proceeding, paragraph (b)

document recording a protected confidence

harm

preliminary criminal proceeding

proceeding, paragraph (d)

protected confidence

protected confidence evidence

Part 5 Family Violence Act 2016

insert

 (f) harmful use of, or interference with, technology.

Examples—par (f)

1 use of an electronic device to publish intimate images of a family member without the member’s consent

2 causing a computer system to deny access to a family member who is an authorised user of the system

3 using an electronic messaging system to send abusive or threatening messages or images to a family member

4 using software to track a family member’s whereabouts or computer use

5 creating a false social media account to disseminate adverse information about a family member

6 using social media to publish intimate images of a person without the person’s consent

in division 10.2, insert

156 Review of Act

 (1) The Minister must—

 (a) review the operation and effectiveness of this Act as soon as practicable after the end of 3 years after this section commences; and

 (b) present a report of the review to the Legislative Assembly before the end of 4 years after this section commences.

 (2) This section expires 5 years after the day it commences.

substitute

family violence offence—an offence is a family violence offence if the conduct making up the offence is family violence.

Part 6 Working with Vulnerable People (Background Checking) Act 2011

substitute

Part 3.2 Class A disqualifying offences

Note An offence mentioned in this part is a class B disqualifying offence for a person engaged, or seeking registration to engage, in a kinship care activity (see s 11B).

Part 3.3 Class B disqualifying offences