Section 124E of the Sentencing Act 1995 (WA) empowers a Court to make a declaration that the offender being convicted is a 'serial family violence offender' where the criteria of the section are met (Declaration). This is a serious Declaration with some wide ranging impacts on the offender. The criteria for a Declaration are different for summary offences and indictable offences. Each however must involve an offender and victim who were or are in a designated family relationship, with the relevant offences having been committed on or after 1 January 2021.
For the purposes of this section prescribed offences include but are not limited to breaching an FVRO, stalking, strangulation, and threats of violence 1.
What the Court considers
Where it is a summary only offence, the offender at the time of conviction must have been convicted of a minimum of three prior prescribed offences. At least three of these offences must have occurred on separate days, to prevent the Declaration being made where only one incident of family violence had occurred despite multiple offences having been committed.
Where the offences are indictable only, the threshold is lower with the offender only being required to have committed two prior offences at the time of conviction for the Declaration to be available to the Court. As with the summary offences, these offences must have occurred on separate days.
The Court can take into account offences committed within the previous 10 years when considering whether to make a Declaration, however the Court can also, where there are exceptional circumstances, also take offences outside this 10 years period into account.
It is not necessary that the offences all occur within Western Australia to be considered for the purposes of a Declaration. It is also not necessary that the offences be committed against the same victim.
So long as at least one (1) offence from the list of prescribed offences has been committed in Western Australia in the context of a family relationship, and the offender was not a minor at the time of the offences, this is sufficient to enliven Section 124E.
A Declaration may be made by the Court on its own initiative or on application by the Prosecutor.
Prior to making any Declaration the Court must take into consideration the nature of the offences committed, the criminal history and the likelihood of further family violence being committed by the accused.
The Court must also make orders for the offender to undergo an expert assessment and give consideration to the report and any recommendations made prior to a Declaration being made.
If a Declaration is made, it remains in place indefinitely.
Cancellation of a Declaration
A Declaration can only be cancelled on application by the offender, 10 years after the Declaration has been made. The application for cancellation can be made to any criminal court and on considering any application the Court is required to consider the factors set out in Section 124E(1).
It is important to note that upon a Declaration being made the offender cannot hold a firearms of explosives licence and any such licence is cancelled, with the holder unable to reapply or apply for a new licences until such time as 10 years has passed and a successful cancellation application has been made.
Given that the Declaration power has only been recently introduced we are yet to see the practical application how willing a Court will be to consider the Declaration no longer necessary for the protection of victims.
Footnote
1 Other prescribed offences include – breach of a family violence restraining order; distribution of intimate image; murder: manslaughter; unlawful death; disablement; stupefying; deprivation of liberty; wounding; assault; indecent assault; sexual penetration without content; sexual coercion; suffocation and strangulation; threats; stalking; persistent family violence; homicide; criminal damage; Grievous Bodily Harm; offences endangering life or health, kidnapping and deprivation of liberty.
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