Debates Day 5 - Wednesday 17 October 2007
Parliamentary Record 17
Debates for 10th Assembly 2005 - 2008; 10th Assembly 2005 - 2008; Parliamentary Record; ParliamentNT
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Legislative Assembly of the Northern Territory
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Legislative Assembly of the Northern Territory
DEBATES Wednesday 17 October 2007 4849 The mechanism will operate either on application or on the courts own motion. While agreeing to attend a rehabilitation program requires consent, failure to attend the program will constitute a breach of the order. This provision is intended to bring about attitudinal change with the defendant learning new ways to deal with anger, manage alcohol intake, or rethink the impact of their behaviour on their family relationships. It is also designed to encourage people to develop problem-solving and communication skills that can be put into use in personal relationships. The bill requires the court to explain the nature and effect of the terms of any order, including details of any restraints or obligations to a defendant and the protected person if that person is in the court. The court will also be required to explain that the order can be registered and enforced in other states and territories and in New Zealand, what will happen if the terms of the order are breached, and how the order can be varied or revoked. Given that a breach of an order carries criminal consequences, including imprisonment for the defendant, we have decided to include these obligations on the court as part of a preventative strategy to avoid breaches of orders based on simple and genuine misunderstandings of their terms. During the review of the Domestic Violence Act, many stakeholders raised concerns that the provisions dealing with variations and revocations of existing orders were being used by defendants as a means to seek a de facto appeal or a review of a magistrates decision. We were advised that, as a consequence of this, many victims were living in anxiety and uncertainty about whether they would be called to court to respond to an application by the defendant and whether the order would be changed. Under these reforms, the situation will change. It will be harder for defendants to obtain a variation or revocation of an existing order, with such orders only being made where there has been a substantial change in circumstances. A change of circumstances might include changes regarding the childcare arrangements of children of the relationship or the satisfactory completion of a rehabilitation program. Domestic Violence Orders will continue to be enforced by criminal sanctions. A breach of a court order will now attract a maximum penalty of two years imprisonment, which replaces six months under the current act. This penalty has been increased as it was the governments view that six months was manifestly inadequate given the adverse impact that this kind of violence has on family members and on the community. Two years is also broadly consistent with other serious offences of violence, such as threatening to cause injury or assault. A breach of an order is a strict liability offence which means that no fault element needs to be proved and the defence of mistake of fact will be available. The bill makes some changes to the sentencing regime. The bill does not introduce mandatory sentencing, as has been claimed. Mandatory sentencing already exists under the act. What this bill will do is make the operation of mandatory provisions fairer. Under the new legislation, the court must record a conviction and impose a sentence of imprisonment of at least seven days for a second or subsequent offence where harm results to the protected person. In circumstances where the breach of the order does not, in fact, result in harm, the court will have discretion not to impose a mandatory sentence if the court is of the opinion that in the circumstances of the offence it is not appropriate to do so. The amendment sends a strong consistent message to perpetrators in the wider community that domestic and family violence will not be tolerated, and that a breach of an order is a serious offence and will be regarded as such by the sentencing court. In circumstances where there has been a technical breach of an order that resulted in no harm to the victim, the court will maintain its discretion, however, and the potential injustice that arises from the current mandatory sentencing system will be avoided. This change will encourage victims to report breaches when they occur. It may also encourage defendants to consent to orders as they will more likely not fear the inflexibility of the previous sentencing regime. This would, in turn, reduce the need for victims to give evidence to obtain orders and reduce the number of court hearings, saving court time and resources. Change should be favourably received by the criminal justice system and the judiciary. The same sentencing provision will apply to young people between the ages of 15 and 18 where they breach an order. Again, the court will have discretion where harm does not result from the breach and, in sentencing young people, the court can take into account the age of the person as well as the circumstances of the case. For the registration of interstate orders, we have introduced a small provision that will allow interstate orders to be registered and have effect in the Territory. This will remove the need for persons living in border areas to actually go to court in the Northern Territory to give effect to orders that are already in place elsewhere. Madam Speaker, as I have detailed at length, the government has not made a final decision
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