LLB 130 Study Guide - Final Guide: Aggravated Sexual Assault, Assault Occasioning Actual Bodily Harm, Crimes Act 1900
Scaffold for Domestic Violence
Crimes (Domestic and Personal Violence) Act 2007
1. Go through the civil system
- Is there grounds for an AVO?
▪ Grounds in s 16
▪ What the court must consider: s 17
▪ Determine whether:
ADVO – domestic relationship
APVO – non-domestic relationship
▪ Process of obtaining ADVO/APVO
- Is there already an order in place?
▪ Is there a breach of prohibitions? Prohibitions s 35
If there is a breach, s 14 has the offence
2. If there is a breach, it becomes a criminal matter
Contravening an AVO – s 14 – imprisonment for 2 years or 50 penalty units, or both
- Was there stalking or intimidation involved?
▪ Stalking definition – s 8
▪ Intimidation definition – s 7
▪ Offences – s 13
- Was there choking, suffocation or strangulation? (Crimes Act 1900)
▪ Made a offee as it is a red flag to future offees like urder
▪ Two offences:
S 37(1) – find intent or recklessness
S 37(2) (more serious) – intention to commit another indictable
offence
Other indictable offences – sexual offences/assault – see if there
is a offee for attept to oit…
No penalty for attempted assault in crimes act
Attempt for sexual assault – s 61P Crimes Act – liable for the
penalty provided for the commission of the offence – sexual
assault s 61I – 14 years’ iprisoet
- Was there another criminal offence? E.g. sexual offences/assault
▪ Use other scaffold
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CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007
16 Court may make apprehended domestic violence order
(1) A court may, on application, make an apprehended domestic violence order if it is
satisfied on the balance of probabilities that a person who has or has had a domestic
relationship with another person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a domestic violence offence against the
person, or
(b) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic
relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the
order
(2) Despite subsection (1), it is not necessary for the court to be satisfied that the
person for whose protection the order would be made in fact fears that such an
offence will be committed, or that such conduct will be engaged in, if:
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below
average general intelligence function, or
(c) in the opinion of the court:
(i) the person has been subjected on more than one occasion to conduct by
the defendant amounting to a personal violence offence, and
(ii) there is a reasonable likelihood that the defendant may commit a personal
violence offence against the person, and
(iii) the making of the order is necessary in the circumstances to protect the
person from further violence, or
(d) the court is satisfied on the balance of probabilities that the person has
reasonable grounds to fear the commission of a domestic violence offence against
the person.
(2A) An apprehended domestic violence order that is made in reliance on subsection (2) (d)
cannot impose prohibitions or restrictions on the behaviour of the defendant other than
those prohibitions that are taken to be specified in the order by section 36.
(3) For the purposes of this section, conduct may amount to intimidation of a person even
though:
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the
possession of or used by the person.
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17 Matters to be considered by court
(1) In deciding whether or not to make an apprehended domestic violence order,
the court must consider the safety and protection of the protected person and
any child directly or indirectly affected by the conduct of the defendant alleged in
the application for the order.
(2) (2) Without limiting subsection (1), in deciding whether or not to make an
apprehended domestic violence order, the court is to consider:
(a) in the case of an order that would prohibit or restrict access to the defendant’s
residence-the effects and consequences on the safety and protection of
the protected person and any children living or ordinarily living at the residence if an
order prohibiting or restricting access to the residence is not made, and
(b) any hardship that may be caused by making or not making the order, particularly
to the protected person and any children, and
(c) the accommodation needs of all relevant parties, in particular the protected
person and any children, and
(d) any other relevant matter.
(3) When making an apprehended domestic violence order, the court is to ensure that
the order imposes only those prohibitions and restrictions on the defendant that, in
the opinion of the court, are necessary for the safety and protection of the protected
person, and any child directly or indirectly affected by the conduct of
the defendant alleged in the application for the order, and the protected person’s
property
(4) (4) If an application is made for an apprehended domestic violence order that
prohibits or restricts access by the defendant to any premises or place and
the court hearing proceedings in respect of the application decides to make an order
without the prohibition or restriction sought, the court is to give reasons for that
decision.
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Document Summary
Crimes (domestic and personal violence) act 2007: go through the civil system. Is there grounds for an avo: grounds in s 16, what the court must consider: s 17, determine whether: Apvo non-domestic relationship: process of obtaining advo/apvo. If there is a breach, s 14 has the offence: if there is a breach, it becomes a criminal matter. Contravening an avo s 14 imprisonment for 2 years or 50 penalty units, or both. Was there stalking or intimidation involved: stalking definition s 8, offences s 13. Was there choking, suffocation or strangulation? (crimes act 1900: made a(cid:374) offe(cid:374)(cid:272)e as it is a (cid:862)red flag(cid:863) to future offe(cid:374)(cid:272)es like (cid:373)urder, two offences: S 37(1) find intent or recklessness. S 37(2) (more serious) intention to commit another indictable offence. Other indictable offences sexual offences/assault see if there is a(cid:374) offe(cid:374)(cid:272)e for atte(cid:373)pt to (cid:272)o(cid:373)(cid:373)it . No penalty for attempted assault in crimes act.
