Law Reform: Family Violence Criminal Provisions

In 2020, as part of an overhaul of the Family Violence law reform in WA, the Family Violence Legislation Reform Act 2020 introduced two new criminal offences to the Criminal Code WA, being:

Section 298 – Suffocation and Strangulation; and
Section 300 – Persistent Family Violence.

The Reform Act also introduced a new definition of Persistent Family Violence, contained with section 299 of the Criminal Code.

Combined, these sections ensure that previously unspecified aspects of family violence which were not properly captured by the Criminal Code, are specifically and intentionally charged, tried and punished as appropriate.

Suffocation and Strangulation

Section 298 provides the following:

A person commits a crime if the person unlawfully impedes another person’s normal breathing, blood circulation, or both, by manually, or by using any other aid —

(a) blocking (completely or partially) another person’s nose, mouth, or both; or

(b) applying pressure on, or to, another person’s neck.

The maximum penalty for an aggravated offence of this nature is imprisonment for 3 years and a fine of $36,000.

The actions targeted by this section were previously inelegantly captured by either assault or grievous bodily harm provisions. Since their introduction in 2020, these sections have been extensively utilised by Police in charging suspects with incidents of Family Violence.

Persistent Family Violence

Section 299 sets out the circumstances in which a Family or intimate relationship exists, and provides various definitions for the interpretation and application of the offence contained within section 300.

Relevantly, it provides that ‘persistent’ family violence is defined as 3 or more occasions family violence perpetrated against the same person on separate days over no longer than a 10-year period. Only certain offences are defined as constituting family violence, but these can include the breach of a Family Violence Restraining Order.

Section 300 then provides that the offence of Persistent Family Violence is punishable by up to 14 years imprisonment, or, if dealt with summarily, 3 years imprisonment and a fine of $36,000.

Importantly, the finder of fact for this offence needs only to be satisfied of the general nature and characteristic of the offence. It is not required that each element of the alleged offences be established beyond a reasonable doubt.

Double Jeopardy

There are also strict double jeopardy provisions within the Criminal Code. In the event a person is acquitted of a Persistent Family Violence charge, they cannot later be found guilty of a specific prescribed offence for the same act. People cannot be tried twice for the same offence where there has been a finding of fact made in respect of the evidence on that matter.

Charges

If you have been charged with an offence under the Criminal Code, including one of the new Family Violence provisions addressed above, it is important to seek legal advice to understand how it can impact your future, your children, your relationship, your employment and even potential further criminal charges.

Our office can assist you to progress your matter through the criminal court system quickly, efficiently and with as little impact on your life as possible.