LBR 14/00 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

LBR 14/00 Penalties And Sentences (Non-Contact Orders) Amendment Bill 2000

The inclusion of non-contact orders into the sentencing regime under the Penalties and Sentences Act 1992 expands the ability of the courts to protect victims of personal violence. The breach of such orders could result in imprisonment for the offender. The Bill represents an increased commitment to the welfare of victims of personal crime.

Wayne Jarred

Legislation Brief 14/00 October 2000 © Queensland Parliamentary Library, 2000 LEGISLATION BRIEF ISSN 1443-7910 ISBN 0 7242 7897 4 This Legislation Bulletin was prepared to assist Members in their consideration of the Bill in the Queensland Legislative Assembly. It should not be considered as a complete guide to the legislation and does not constitute legal advice. The Bulletin reflects the legislation as introduced. The Queensland Legislation Annotations, prepared by the Office of the Queensland Parliamentary Counsel, or the Bills Update, produced by the Table Office of the Queensland Parliament, should be consulted to determine whether the Bill has been enacted and if so, whether the legislation as enacted reflects amendments in Committee. Readers are also directed to the relevant Alert Digest of the Scrutiny of Legislation Committee of the Queensland Parliament. Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to:

Director, Research Publications & Resources Queensland Parliamentary Library Parliament House George Street, Brisbane QLD 4000 Director: Ms Mary Seefried. (Tel: 07 3406 7116)

Information about Research Publications can be found on the Internet at: Http://www.parliament.qld.gov.au/parlib/research/index.htm CONTENTS

1 INTRODUCTION ...... 1

2 COURT ORDERS GENERALLY...... 2

3 NON-CONTACT ORDERS ...... 3

4 OTHER STATUTORY PROVISIONS IN QUEENSLAND THAT ASSIST IN PROTECTING VICTIMS OF CRIME...... 5

4.1 CRIMINAL OFFENCE VICTIMS ACT 1995 ...... 5

4.2 BAIL ACT 1980 ...... 7

4.3 EVIDENCE ACT 1977...... 8

4.4 PEACE AND GOOD BEHAVIOUR ACT 1982...... 9

4.5 DOMESTIC VIOLENCE (FAMILY PROTECTION) ACT 1989 ...... 11

4.6 THE CRIMINAL CODE ACT 1899...... 12

5 OTHER STATES ...... 13

6 VICTIMS OF CRIME ...... 14

6.1 THE EFFECTS OF CRIME ON VICTIMS...... 15

6.2 OFFENDER – VICTIM RELATIONSHIP...... 17

6.3 FEARS HELD BY MANY SENIOR CITIZENS OF BECOMING A VICTIM...... 17

6.4 WOMEN’S FEAR OF VIOLENT CRIME ...... 18

APPENDIX – NEWSPAPER ARTICLES...... 19

Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 1

1 INTRODUCTION

The Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 was introduced into the Queensland Legislative Assembly on 6 September 2000. The object of the Bill is to assist in the protection of victims (other than victims of domestic violence) who have been subjected to personal violence. This is to be achieved by providing sentencing courts with the power to make an order that the convicted person refrain from contact with the victim and/or someone who was present when the offence was committed. Additionally a sentencing court may issue an order to the effect that the convicted offender refrain from attending a stated place at any stated time.

Protection of the general community from offenders is important but in cases where circumstances warrant, the specific protection of victims is now regarded as essential.

In Australia, there are statutory provisions in all States allowing the courts to make orders restraining offenders from conduct that threatens, harasses or offends another. The Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 provides additional statutory protection in Queensland for victims of personal violence.

Generally speaking, until recent times the criminal justice system has operated under the assumption that the major responsibility of the State was the responsibility for prosecuting criminal offenders in the public interest. This responsibility still remains and will remain the central responsibility of the State but it has been joined by an increased perception that the interests of victims of crime must in the future feature more prominently in the criminal justice process. As well as in Australia, this trend has occurred in the United States of America, Canada, the United Kingdom and New Zealand.1

Non-contact orders have been in use for some time in Canada and the United States where they are commonly referred to as “criminal no-contact orders” or “criminal stay away orders”. For instance, in the American State of New Hampshire the term “contact” is interpreted to include indirect contact or third

1 Helen Fenwick, ‘Procedural Rights of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?’, The Modern Law Review, 60(3), May 1997, pp 317 – 333. Page 2 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 party contact, with court orders being worded in a manner along the following lines: The defendant shall have no contact with the victim. The defendant shall not try to indirectly contact the victim through notes, letters, packages, gifts, flowers, Email, phone, calls/messages, or through any other means. The defendant shall not use a third party or an intermediary to contact the victim. The defendant shall not directly or through an intermediary try to contact the victim’s friends, family, neighbours, or coworkers in an effort to access the victim.2

In the State of Idaho, no-contact orders may be issued by the courts or under criminal rules by the police and they can be applied to offenders prior to conviction as well as post conviction.3

2 COURT ORDERS GENERALLY

As acknowledged by the Attorney-General when introducing the Bill,4 the courts have long had the ability to make orders of a type similar to the non-contact orders proposed in the Bill. Contemporary statutory powers that allow the courts to produce orders aimed at ensuring the safety of victims of crime have over time been built upon a common law base.

The result is that in all Australian jurisdictions the courts have the power to make orders that restrain a person from engaging in conduct that threatens, harasses or offends another person. Whilst some of the existing legislation concerns domestic violence issues, such orders are also catered for in other types of legislation.

At common law, a court has the power to bind over any person to keep the peace if, on the evidence, the court is satisfied that the person concerned has been guilty of violent conduct tending to breach the peace.

2 United States of America. State of New Hampshire, ‘Bail and Non Contact Orders’, http://ndaa- apri.org/apri/Vawa/LegalIssues/BailNoContact.html Downloaded 14 September 2000.

3 Legislature of the State of Idaho, Senate Bill No 1323 Second Regular Session 2000. http://www3.state.id.us/oasis/S1323.html Downloaded 14 September 2000.

4 Hon M J Foley MLA, Attorney-General, Minister for Justice and Minister for The Arts, Penalties and Sentences (Non-contact Orders) Amendment Bill 2000, Second Reading Speech, Queensland Parliamentary Debates, 6 September 2000, p 2977. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 3

3 NON-CONTACT ORDERS

The Bill provides that non-contact orders may be issued by sentencing courts against an offender found guilty of certain offences against the person, whether or not a conviction is recorded against the offender (proposed new s 43A). The only restrictions on a sentencing court making a non-contact order are: • such an order cannot be made if an order under s 30 Domestic Violence (Family Protection) Act 1989 may be made; and • that the personal offence that was committed must be an indictable offence under the Criminal Code 1899 (proposed new s 43B).

Under s 3(3) Criminal Code 1899, certain crimes and misdemeanours are indictable offences. Such offences are generally required to be heard before a judge and a jury. Examples of personal offences that are indictable offences under the Criminal Code 1899 are: • Murder & manslaughter (under such circumstances a non-contact order could be issued ordering the guilty offender to stay away from a person who was with the victim at the time the offence that caused the death was committed); • Bodily harm; • Grievous bodily harm; • Torture; • Unlawful wounding; • Common assault; • Sexual assaults; • Abduction; • Kidnapping; • Rape; and • Unlawful stalking.

The ambit within which non-contact orders may operate is: • They may contain a requirement that the victim (or someone who was with the victim when the offence was committed) not be contacted for a specified period of time; or • They may contain a requirement that the offender not go to a stated place or within a specified distance of the stated place for a specified period of time (proposed new s 43C(1)).

The specified period of time in which a non-contact order is to be operative is to be no longer than two years from the date of issue when a term of imprisonment is not ordered, or two years from the end of any term of imprisonment that was ordered (proposed new s 43C(2)). Page 4 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

For example in the latter case, a person who is sentenced to four years imprisonment for sexual assault in 2001 and who is also subject to a non-contact order of two years, but who is paroled after serving three years in 2004, will remain subject to the conditions of the order until 2007. This is because the term of imprisonment liable to be served does not actually end until 2005.

Sentencing courts will be able to issue non-contact orders in situations where the offender is determined by the court to pose an unacceptable risk to the welfare of the victim or an associate of the victim. There will also be an onus on the sentencing court to take into consideration the viability of making such an order when all the circumstances of the case are taken into account.

In proposed new s 43C(5) the term “contact” is given a wider meaning than direct contact. Contact can include contact via phone, mail, fax, email and the like. The meaning also encompasses such behaviour as following, loitering and watching.

Any convicted person who is the subject of a non-contact order and who solicits or procures another person to unlawfully contact a victim by doing any of the acts listed in proposed new s 43C(5) would also be in breach of the non-contact order.

The Bill makes provision for the amendment or revocation of a non-contact order that has been issued and is still in force (proposed new s 43D). The parties that may apply to a court to have an existing order amended or revoked are the prosecutor, the victim or victim’s associate named in the order, and the offender. Changed circumstances of the victim or associate or the offender would be valid grounds for seeking an amendment or revocation of an existing order.

Basically, a court asked to determine an amendment application would be concerned to ensure that the reasons for the conditions of the initial order were upheld. The court would be concerned to ensure that the objective of the initial order remained the central issue. On the other hand, an offender seeking to have an order revoked would have to show that the circumstances have changed sufficiently to warrant that action. As with the issuing of orders in the first instance, amendment and revocation applications would be examined in the light of all the circumstances. Only once the court is satisfied that the safety of the victims or associates will not be compromised would such an application be granted.

Concerns of procedural fairness to offenders and victims or associates as opposing parties to an application to amend or revoke have been catered for. This has been done by ensuring that the relevant prosecuting authority provides the other party with notification of the application by way of a copy of the application (proposed new s 43D(5)).

Any amended order issued as a result of an application is to be written in the approved form with copies to each of the parties concerned, the prosecution, the Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 5 chief executive of corrective services and the police commissioner. This also applies to the making of the order in the first instance (proposed new s 43E(1)).

Unlawful contravention of an existing non-contact order may result in a maximum penalty of $3,000 or one year imprisonment. There is also provision for a court convicting an offender of a breach of a non-contact order to either sentence and/or amend the original order or remand the offender to appear before the District or Supreme Court that issued the original order, for sentence (proposed new s 43F).

4 OTHER STATUTORY PROVISIONS IN QUEENSLAND THAT ASSIST IN PROTECTING VICTIMS OF CRIME

There are provisions across a number of Queensland Acts designed to ease the trauma suffered by victims of violent crime. In recent times, State legislation containing provisions pertaining to victims of crime has been subject to reform. For instance, the Criminal Law Amendment Bill 2000 currently before the Legislative Assembly amends provisions of the Evidence Act 1977 pertaining to the giving of evidence in judicial proceedings by witnesses including victims.

4.1 CRIMINAL OFFENCE VICTIMS ACT 1995

Section 4(5)(a) Criminal Offence Victims Act 1995 provides that the declaration and guidelines made under the Act are not enforceable by criminal or civil redress. However, the authoritative nature of the provisions of the Act was commented on in the Court of Appeal in the following way: The provisions of the Criminal Offence Victims Act 1995 impose positive duties on prosecuting authorities, and these duties might require courses of action not traditionally the province of lawyers. Victims are entitled to complain if their trauma is not minimised by the thoughtful application of those provisions.5

Section 4(7) urges public officials (including law enforcement officers) to have regard to the principles when acting within their formal duties and when it is practicable for them to do so.

5 R v Press (1997) QCA 7 (14 February 1997) per Fryberg J. Page 6 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

A Discussion Paper published by the Department of Justice and Attorney-General in July 1998 called for public submissions for the purpose of identifying how the legislation could be made more meaningful. The Discussion Paper acknowledged: …the Criminal Offence Victims Act 1995 provides a statement of what rights a victim has in the criminal justice system, it does not provide a mechanism for implementing those rights.6

Via this public consultation and discussion process the Attorney-General sought to integrate more closely the provisions of the Act with the criminal justice system for the purpose of meeting the needs and interests of victims as an important component of the criminal justice system.

The Criminal Offence Victims Act 1995 (s 5) defines three classes of persons who may be victims as a result of the violation of the State’s criminal laws. These are: • any person who has been the subject of violence in a direct way; • any person who is a member of the immediate family or is a dependant of the victim; • any person who has suffered harm as a result of intervening to help a victim.

This 1995 Act incorporated into Queensland legislation for the first time a number of fundamental principles that victims of crime could expect the criminal justice system to abide by in dealings with them as victims. Section 12 prescribes that victims of crime have a right to be protected from violence and intimidation from the accused person. In stating that victims should be afforded all necessary protection from violence and intimidation by a person accused, Section 12 of the Act is addressed to law enforcement officers to ensure that this is done in appropriate cases.

Law enforcement officers are defined in Schedule 3 of the Act as meaning: • police officers; • prosecutors involved in criminal trials; • officers of law enforcement agencies.

Law enforcement agencies include the police service, the office of the director of public prosecutions, and any other department, office, agency of the State or other statutory body whose function it is to investigate or take action concerning criminal offences.

6 Queensland. Department of Justice and Attorney-General, Review of the Criminal Offence Victims Act 1995 – Implementing the Fundamental Principles of Justice for Victims of Crime, Discussion Paper, July 1998, p 1. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 7

Section 12 recommends, with authority, four pieces of Queensland legislation whose provisions may be used in appropriate cases to afford protection to victims from acts of accused persons and unwanted publicity. They are: • s 16 Bail Act 1980 which allows the criminal courts to refuse bail to accused persons. • s 695A Criminal Code Act 1899 which empowers the courts to prohibit the publication of information about proceedings in court. • ss 5 & 6 Criminal Law (Sexual Offences) Act 1978 which authorise the exclusion of the general public from court proceedings and a prohibition on the general publication of the complainant’s identity. • s 21A Evidence Act 1977 where the evidence of special witnesses may be given in court (amongst other things) with the accused being excluded.

These provisions go toward protecting victims from further violence or intimidation but they cannot by themselves guarantee that such acts will not happen in the future. When such provisions are used to protect victims, the offender becomes aware that the criminal justice system is instigating a protective role for the victim that may have a psychological effect on the accused by letting that person know that they are being ‘monitored’.

4.2 BAIL ACT 1980

Section 16 Bail Act 1980 empowers courts authorised to grant bail to refuse bail in circumstances where the defendant would, if released on bail, endanger the safety or welfare of the victim. This provision is quite clearly one that is intended to safeguard the welfare of victims. In situations where an offender has been found guilty and has applied for bail pending an appeal against conviction, then the onus of proof as to why the bail should be granted is placed on the convicted person. In Ex Parte Maher, the Full Court of the Supreme Court of Queensland ruled that the discretion to grant bail after conviction should be exercised only if the applicant can show exceptional circumstances as to why bail should be granted. 7

Hypothetically: an offender could be convicted of assault and sentenced to 12 months imprisonment. That convicted person may indicate that an application to appeal against conviction will be instigated and at the same time an application for bail pending that appeal would be made. The prosecution is fearful and the victim is fearful that the offender may intimidate or even commit further violence to the victim. The use of s 16 (1)(ii)(B) Bail Act 1980 by the court would see an application for bail refused. The victim would be safe for the period until the

7 Ex Parte Maher (1986) 1 Qd R 303. Page 8 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 appeal was heard or the sentence served. However, this situation would only last until either the appeal quashed the conviction or the sentence was served.

4.3 EVIDENCE ACT 1977

In R v West8 the Queensland Court of Criminal Appeal dismissed an appeal from an accused male charged with the rape of a female. The appellant had challenged the exercise of the trial judge’s discretion under s 21A Evidence Act 1977, the trial judge having ordered that a screen be placed between a witness giving evidence and the defendant in the court. The Court of Appeal held: • that even at common law there is a power to direct that an accused be obscured from the view of a witness who was likely to be intimidated by the presence of the accused; and • that if the trial judge discerned that the witness was prima facie so intimidated by the presence of the accused that it affected her ability to give evidence, it was proper to make some arrangements such as screening which would minimise or eliminate the problem, provided the appropriate directions were given to the jury to avoid unfair prejudice to the accused.

The courts exercise their discretion in regard to declaring a witness to be a ‘special witness’ in accordance with s 21A on the basis that the presence of the accused may be intimidatory. The judge addressed the jury after the jury had left the court room and returned: Ladies and gentlemen, you will see that the accused is no longer in the dock. In fact he is at the back of the court behind the screen. I want to give you some brief explanation for that and some brief directions. You will have seen that the witness had some difficulty in giving her evidence…I’ve reached the view, that the trial might proceed expeditiously and expediently in the overall interests of justice if the accused is not in view of the witness. Now, I should hasten to add that you would have noticed that the accused has not in any way apparently tried to influence or intimidate the witness. Indeed it was indicated at the start of the trial in your absence what the defence proposed to have him do was not to look at the witness at all. I hasten that you must not draw any adverse inference against the accused by reason of the steps that I have taken.9

8 R v West (1992) 1 Qd R 227.

9 R v West (1992) 1 Qd R 227 at 230. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 9

4.4 PEACE AND GOOD BEHAVIOUR ACT 1982

Section 4 of the Act prescribes the types of incidents that are regarded as breaches of the peace. Behaviour that is a breach of the peace and a breach of good behaviour under s 4 is: • Threats to assault or to do any bodily injury to another person or to any person under the care of another person; • Threats to procure another person to assault or do any bodily injury to any person or any person under the care of another person; • Threats to destroy or damage any property of another person; • Threats to procure any person to destroy or damage any property of another person.

Any justice satisfied, on the evidence, that a complainant holds a reasonable fear of any of the above may issue: • A summons directing the defendant to appear before a Magistrates Court; or • A warrant for the apprehension of the defendant to be brought before a Magistrates Court.

Section 6 of the Act authorises the Magistrates Court (before which the defendant appears either on summons or warrant) in accordance with the evidence received to: • Dismiss the complaint; or • Make an order that the defendant is to keep the peace and be of good behaviour for the time period specified in the order.

Any order that the Magistrates Court makes may contain such other stipulations or conditions that the Court thinks fit in the circumstances.

Generally, any such order issued by a Magistrates Court will be directed at instructing the defendant to keep the peace and be of good behaviour towards the complainant for a period mentioned in the order.

Under s 10, contravention of such an order may be punished by a maximum fine of $7, 500 or imprisonment for up to one year.

In the matter of Laidlaw v Hulett10 the Queensland Court of Appeal was asked to determine the standard of proof that a Magistrates Court must find before it can issue an order under s 6 of the Act.

10 Laidlaw v Hulett, ex parte Hulett (1998) 2 Qd R 45. Page 10 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

Laidlaw complained that she had been receiving verbal threats of physical harm from Hulett over a period of 3 months prior to the complaint. The final incident that sparked the complaint occurred at Woodridge Railway Station on 6 January 1995 where Hulett threatened to attack Laidlaw with a knife. The Magistrate who heard the complaint issued a summons for Hulett to appear based on Laidlaw’s fear of future threats and that such fear was reasonable in the circumstances.

The Queensland Court of Appeal in Laidlaw v Hulett held: • That proceedings under the Act are not criminal in character and therefore do not attract the criminal standard of proof required to ground or hold a complaint under the Act; and • That the strength of the evidence required to establish the complaint must take into account the seriousness of the allegation made against the respondent.

Reasons for regarding proceedings under the Act as civil and not criminal were given by McPherson J: The features of the legislation so far described involve substantial departures from the procedure at one time followed in England in applications to keep the peace. In the end, however, I consider they fail to convert the process to one that is criminal rather than civil in character... In assimilating the statutory procedure to the procedure for summary prosecution of offences, the legislation appears to have deliberately stopped short of expressly declaring a matter of complaint under the Act to be an offence. Contravening an order to keep the peace may, if further proceedings are instituted, result in conviction for an offence under s 10 of the Act; but there is nothing to suggest that the order itself involves conviction for an offence... There are other considerations tending to confirm that the statutory procedure in Queensland is not intended to be criminal in character or to attract the criminal standard of proof. One is that it has obvious points of resemblance with injunctive relief commonly granted to restrain conduct of a comparable kind. Another consideration is that, although some of the acts specified in paragraphs (a) to (d) of s 4 might also constitute offences under Chapter 38 of the Criminal Code if accompanied by the requisite intent, s 4 of the Act is concerned not with the criminality of the acts in question, but simply with their tendency to promote breaches of the peace... There is no compelling reason why conduct that is not an offence should have to be established by evidence attaining the level of proof required for criminal charges.

The decision of the Appeal Court was that the evidence that was placed before the Magistrate was insufficient (when the seriousness of the complaint was considered) for her to issue the order that was issued, and that the order should consequently be set aside. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 11

4.5 DOMESTIC VIOLENCE (FAMILY PROTECTION) ACT 1989

When introducing the Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000, the Attorney-General indicated that the non-contact order provisions were not intended to interfere with the powers of the courts to issue domestic violence orders under the Domestic Violence (Family Protection) Act 1989. The orders issued under this Act are known as protection orders or temporary protection orders.

Section 16 Domestic Violence (Family Protection) Act 1989 prescribes that an aggrieved spouse or police may apply to a Magistrates Court for the issuing of a protection order under the Act. Additionally, a court of its own volition may issue a protection order.

Section 20 authorises the courts to issue protection orders when they are satisfied: • that the respondent spouse has committed an act of domestic violence against the aggrieved spouse; and • the respondent spouse is likely to commit such an act again; or • if the act of domestic violence was a threat that the respondent spouse is likely to carry out the threat.

Protection orders may also cover relatives and associates of an aggrieved spouse if the respondent spouse has committed or is likely to commit acts of wilful injury, wilful damage, intimidation or harassment, or has threatened to commit such acts (Section 21).

Under Section 22, protection orders issued by the courts must instruct the respondent spouse to: • be of good behaviour toward the aggrieved spouse and not to commit acts of domestic violence; and • be of good behaviour toward any aggrieved person named in a protection order and not commit an act of associated domestic violence against that person.

Protection orders issued must contain conditions that a firearm is not to be possessed for the period that the order is in place. If the respondent spouse has weapon licences in his or her name, they must be cancelled by the terms of the protection order (Section 23).

In the making of protection orders or the varying of such orders, the courts may impose conditions on the respondent spouse that are considered necessary. Conditions that may be imposed are: • prohibiting the respondent spouse from entering or remaining in specified premises that were once the joint living premises of the two spouses; Page 12 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

• prohibiting the respondent spouse from entering or remaining where the aggrieved spouse resides, works or frequents, even though the respondent spouse may have a legal or equitable interest in the premises the subject of the prohibition; • prohibiting the respondent spouse from approaching within a specified distance of the aggrieved spouse; • prohibiting the respondent spouse from contacting the aggrieved spouse; and • prohibiting specified conduct of the respondent spouse towards a child of the aggrieved spouse (Section 25).

Generally, protection orders will only be issued for a period no greater than 2 years. However there is provision for a protection order to be issued for a longer period if it is determined that there are special reasons for doing so (Section 34). Throughout Queensland there are approximately 13, 000 applications for domestic violence protection orders that are heard by the courts annually. This legislation commenced operation in August 1989 and up until April 2000 there had been almost 63, 000 protection orders issued.11

4.6 THE CRIMINAL CODE ACT 1899

In a Media Statement announcing that the Penalties and Sentences Act 1995 would be amended to allow the courts to issue orders whereby convicted offenders would be ordered to keep away from their victims, the Premier indicated that the move was an extension of the stalking legislation that the government had introduced in 1999.12

The Criminal Code Act 1899 has, since 1999, contained a provision to allow the courts at their discretion to issue restraining orders against accused persons whether or not that person has been found guilty (Section 359F(2)).

This discretion on the part of the courts to issue restraining orders against persons appearing on stalking charges was welcomed by some of the legal fraternity: This power to make a restraining order, regardless of whether the offender is convicted or not, for the purpose of prohibiting particular conduct including, for

11 Queensland. Department of Families, Youth and Community Care, Domestic Violence Information, http://www.families.qld.gov.au/communitycare/dv1999website/Free.html Downloaded 22 September 2000.

12 Hon P Beattie MLA, Premier, ‘Queensland Leads Way in Protecting Victims of Crime’, Queensland Media Statement, 31 January 2000. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 13

example, contact with any person (the victim or another) or any property, is extremely valuable. In the absence of domestic violence laws that extend to cover non-spousal violence and apart from the limited protection provided by the Peace and Good Behaviour Act (1982) (Qld), this is the only effective mechanism available to the victims of this type of frightening behaviour, to protect themselves against continued unwelcome contact.13

5 OTHER STATES

The South Australian Criminal Law (Sentencing) Act 1988 authorises courts of criminal jurisdiction to issue restraining orders upon conviction or sentencing. The Act authorises any court finding a person guilty of an offence or on conviction to exercise the powers under the Summary Procedure Act 1921 and the Domestic Violence Act 1994 in the issuing of restraining orders.

Under the Criminal Law (Sentencing) Act 1988 there were 13 orders issued in 1995 and 59 in 1996. In 1995, the offence of common assault resulted in 54% of the total number of orders issued. In 1996 the figure was 67%. The offence of bodily harm accounted for 23% in 1995 but only 8% in 1996. Threat to kill accounted for 15% of the orders issued in 1995 but only 5% in 1996.14

Breaches of restraining orders issued under the South Australian Summary Procedure Act 1988 carry a maximum penalty of 2 years imprisonment whilst for breaches of restraining orders issued under the Domestic Violence Act 1994 a maximum penalty of 5 years imprisonment applies. A breach of a restraining order is regarded as a minor indictable offence which may be dealt with at the Magistrates Court level or the District Court level. In 1995-1996 there were 509 general restraining orders that were breached whilst there were 288 domestic violence restraining orders for the same period.15

Of those offenders charged with breaching a restraining order in South Australia in 1995 and 1996, approximately 83% were convicted whilst approximately 16% were found guilty but did not have a conviction recorded for the offence.16

13 Sally Kift, ‘Stalking in Queensland: From the Nineties to Y2K’, Bond Law Review, 11(1), June 1999, p 155-156.

14 South Australia. Office of Crime Statistics, Restraining Orders and Stalking Offences in 1995 and 1996, Information Bulletin No. 6, February 1998, pp 7-8.

15 South Australia. Office of Crime Statistics, p 8.

16 South Australia. Office of Crime Statistics, p 11. Page 14 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

In Western Australia the courts are authorised to issue violence restraining orders and misconduct restraining orders under the Restraining Orders Act 1997. The Criminal Code provides that persons the subject of a restraining order under the Restraining Order Act 1997, and who are convicted of the crime of stalking, are deemed to have committed the crime of stalking under a circumstance of aggravation requiring the courts to impose a harsher penalty (ie a maximum of eight years as opposed to a maximum of three years). This circumstance of aggravation also applies in situations where the stalking offence is committed in breach of a bail order.

As with the Queensland Domestic Violence (Family Protection) Act 1989, this Western Australian Act prescribes that every violence restraining order automatically includes a restraint prohibiting the respondent from possessing a firearm or firearm licence or obtaining a firearm licence, although the courts may relax this requirement under particular circumstances.17

In New South Wales, a study of the effectiveness of Apprehended Violence Orders issued in that State indicated that such orders were effective in lowering the incidence of violence against women. The history of violence before an Apprehended Violence Order was compared with the history after the order was obtained. The result showed that for the vast majority of respondents, there was a significant reduction in the incidents of stalking, physical assaults, threats of physical assaults, verbal abuse, nuisance phone calls and other forms of intimidation and harassment.18

6 VICTIMS OF CRIME

The Victim Support Service operated by the Queensland Department of Justice reported that during the financial year 1997-1998 just over 7,700 victims of crime were assisted in accordance with the provisions of the Criminal Offence Victims Act 1995. The type of service provided under the program ranged from supplying information to victims about the criminal justice proceedings that they would experience, through to short-term support and counselling and crisis management.19

17 Restraining Orders Act 1997 (WA) s 14(5).

18 New South Wales. Bureau of Crime Statistics and Research, ‘Apprehended Violence Orders- An Evaluation of their Effectiveness’, Media Release, 15 October 1997. http://www.lawlink.nsw.gov.au/bocsar1.nsf/pages/media151097. Downloaded 22 September 2000.

19 Queensland. Department of Justice, Annual Report 1997-1998, p 35. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 15

The number of reported offences against the person in 1998-1999 was up by 7% from the previous year. In 1998-1999 the number of reported offences of this kind was just over 30,000 which represented a reporting rate of 857 per 100,000 population across the State. The police region that recorded the highest increase in total reported offences against the person between 1997/98 and 1998/99 was the Central Region with an increase of 16%.20 Major population areas covered by the Central Region are Rockhampton, Mackay, Gladstone and Longreach.

In Queensland, the age profile of victims of offences against the person in 1998/1999 indicates that, on a per capita basis, females 15-19 and males 25-29 were the most commonly represented age groups. Females over the age of 55 were recorded as being the least victimised.21

6.1 THE EFFECTS OF CRIME ON VICTIMS

Crime can have a major impact on the psychological state of victims. It can undermine their feelings of wellbeing, make them unsure of themselves and the future. Victims can be left with feelings of apprehensiveness and of being afraid. The experience of being a victim of crime can affect future behaviour. For instance, women who have suffered at the hands of an offender may be reluctant to go out after dark unless they are with someone they know and trust.22

The Australian Institute of Criminology in its publication, A Statistical Profile of Crime in Australia, stated that research in Australia over the last 3 decades indicates that only about 4 out of 10 criminal incidents are ever reported to police. This results in official statistics only telling the story of about half the crime that actually occurs.23

The Institute of Criminology examined the result of the Australian Bureau of Statistics 1995 State-based crime surveys for New South Wales, Victoria, Queensland, Western Australia and South Australia. The 1995 survey for Queensland with respect to personal crimes (robbery, assault, sexual assault) found:

20 Queensland. Police Service, Annual Report 1998-1999, pp 55, 57.

21 Queensland. Police Service, Annual StatisticalReview 1998-1999, p 59.

22 Australian Institute of Criminology, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia, by Bree Cook, Fiona David and Anna Grant, Research and Public Policy Series, No 19, 1999, p 1.

23 Australian Institute of Criminology, A Statistical Profile of Crime In Australia, http://www.aic.gov.au/publications/tandi/ti135.pdf Downloaded 31 March 2000. Page 16 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

• That the victimisation rate per 100 persons was 3.8 for males and 2.4 for females. • The 15 to 24 year age group of victims scored the highest at 8.7 per 100 persons, the 25 to 34 age group scored 5.4, and the 55 years and over scored 3.1. The recorded score for the 55 years and over group was the highest in Australia in 1995 just ahead of Western Australia. The best score recorded for the 55 years and over group was in Victoria where 1.7 per 100 persons was recorded. • The capital cities of Victoria, New South Wales and Queensland all recorded a higher score per 100 population for personal crimes than did the respective regional areas. In Western Australia and South Australia the scores of the capital cities and the regional areas were almost identical.24

The 1993 survey found that in cases of reported assault in Queensland the victims in 35% of the cases knew the offender whilst 19% did not know the offender. The age break down of the assault victims were: • 19.8% of the victims were within the 15 to 24 years group • 30.5% of the victims were within the 25 to 34 years group • 41.8% of the victims were within the 35 to 54 years group • 22.3% of the victims were within the 55 years and over group • the recorded level for the 55 years and over group was less than half the recorded score for Victoria but just more than twice that recorded for New South Wales.

Surveys in the United States indicate that 25% of victims are afraid that the offender would hurt them again.25

Between 1994-1997 the areas in Queensland recording the highest level of offences against the person were found in the far north of the State bordering the Gulf of Carpentaria. Additionally, provisional cities and towns such as Cairns, Mareeba, Townsville, Rockhampton and Gympie also recorded relatively high rates.

24 Australian Institute of Criminology, A Statistical Profile of Crime in Australia.

25 USA. State Bar of Wisconsin, Commission on Violence and the Justice System: Final Report and Recommendations, June 1997 http://www.wisbar.org Downloaded 6 April 2000. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 17

Of the populated south-east, the areas that record the highest rates are the inner suburbs of Brisbane and the city of Surfers Paradise. In the outer urban areas the highest rates were recorded in Ipswich, Inala and Logan Central. The peak offending ages for offences against the person was the 17 to 24 age group.26

6.2 OFFENDER – VICTIM RELATIONSHIP

In Queensland, during 1998/1999, males were responsible for 82% of recorded offences against the person. For this period, in little more than half the recorded cases, the offender was known to the victim. This included a recognised relationship. Partners and ex-partners accounted for 10% of the offences whilst a further 10% were categorised as other family members. The percentage of offenders known to victims other than in a family relationship was 36% whilst 37% were not known to the victims.27

6.3 FEARS HELD BY MANY SENIOR CITIZENS OF BECOMING A VICTIM

The elderly are far less likely to be victims of crime than those in the younger age groups. Despite this statistical fact, many elderly people in the community are fearful of falling victim to crime. This in turn adversely affects their quality of life.28

By the year 2021, those in the community over the age of 65 will represent about 16% of the total population of Australia. Currently 60% of those over 65 years of age are female, many of whom live alone.29 It has been argued that the level of crime committed on senior citizens whilst being at a lower level than other age

26 Queensland. Criminal Justice Commission, A Snapshot of Crime in Queensland, Research Paper Series 5(1), February 1999, pp 4, 9.

27 Queensland. Police Service, Annual Statistical Review 1998-1999, pp 59, 85.

28 Duncan Chappell, Director, Australian Institute of Criminology, Foreword to Trends and Issues in Crime and Criminal Justice, No 37, June 1992.

29 Australian Bureau of Statistics, Census, 1991 cited in Marianne Pinkerton James, ‘The Elderly as Victims of Crime, Abuse and Neglect’, Trends and Issues in Crime and Criminal Justice, No 37, June 1992. Australian Institute of Criminology, p 1. Page 18 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

groups is still the most traumatic because of the vulnerability of the senior members of the community: Criminal victimisation of the elderly is a unique phenomenon and the response to it should recognise the problem in its own terms rather than as part of the general crime configuration depicted in aggregate crime statistics.30

Issues identified as increasing the effect of victimisation on the elderly are: • decreased strength and agility minimises self-defence and resistance would be more dangerous; • the negative psychological impact is greater than in younger persons; • there is greater fear that the offender will return; • economic loss is more serious to most of the elderly who are on fixed incomes; • the elderly are at risk from fraud and confidence tricksters; • the elderly have a high level of fear that they will become a victim of crime.

6.4 WOMEN’S FEAR OF VIOLENT CRIME

Women as a specific category are less likely to become victims than men. However, as with the aged category, women as a distinct group in the community perceive themselves at higher risk and tend to be more fearful than men.31

Identified elements in relation to the fear of women becoming victims: • the feeling of being vulnerable on the part of women starts at an earlier age and increases with age; • women who suffer domestic violence are more fearful of violence in the community and of becoming a victim of violence outside the home; • over 25% of homicides in Australia involve current or former intimate partners whilst over 75% of the victims of intimate-partner homicides are women; • women who are not in the labour force are 1.9 times more likely to feel unsafe in the community than women who are either working or unemployed and are seeking work, and • women have a greater fear that other members of their family will become victims of crime than men do.32

30 Marianne Pinkerton James, p 2.

31 Carlos Carcach and Satyanshu Mukherjee, ‘Women’s Fear of Violence in the Community’, Trends and Issues in Crime and Criminal Justice, No 135, November 1999, Australian Institute of Criminology, p 1.

32 Carcach and Mukherjee, pp 2-4. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 19

APPENDIX – NEWSPAPER ARTICLES

Title Court plan to protect victims of crime. Authors Franklin, Matthew, Greber, Jacob, O'Malley, Brendan Source Courier Mail Date Issue 27/01/00 Page 1 The State Government will give judges power to order criminals to stay away from their victims in a push aimed squarely at violent and sexual offenders. On Monday, Attorney-General Matt Foley will ask Cabinet to back an amendment to the Penalties and Sentences Act giving judges the option to make the orders to protect victims of crime from further assault. The no-contact order would be made at the time of sentencing in what Mr Foley described last night as the first legislation of its type in Australia. News of the plan came as the state Coalition focused its campaign for the February 5 Woodridge and Bundamba by-elections on law and order. Opposition Leader Rob Borbidge said voters should elect a non-Labor MP to deliver truth-in- sentencing laws that would force violent offenders to serve their full jail terms. Polling conducted earlier this month for The Courier-Mail by CM Research showed 41 percent of Woodridge voters rated law and order the key issue of the campaign. Mr Foley said that under existing law the civil courts could make no-contact orders, specifically on family law matters. The proposed change would extend the power to criminal courts, making the no-contact order a sentencing option applying to all crimes but aimed specifically at violent and sex offenders. The length of the no-contact order would be at a judge's discretion and people who breached an order would be committing a new offence under the law. "People who have been victims of crimes of violence feel vulnerable and need the protection of the law," Mr Foley said. "This gives judges an added option and provides greater protection for victims". Mr Borbidge said Mr Foley's plan was a by-election stunt and a rehash of similar Coalition-proposed laws rejected by Labor in Parliament last year. Mr Borbidge made the comments in a press conference outside a Woodridge service station yesterday with local woman Sonja White, who was held up at gunpoint late in 1998.Mrs White said she had gathered more than 30,000 signatures in support of mandatory jail terms for serious criminals and planned to write to 2000 Woodridge voters urging an anti-Labor vote.Labor must win the by-elections to maintain its hold on majority government. Mr Borbidge said Woodridge voters could elect a non-Labor member to change sentencing laws without fear of bringing down the Government. "Even for those true believers in the Labor Party who signed Sonja's petition, this will be a chance for them to have their grievances enacted in the Parliament without changing the Government," Mr Borbidge said. Page 20 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

Victims of Crime Association state president Jim Parke welcomed Mr Foley's plan, but queried whether it was an attempt to grab headlines in the run-up to the by-elections. "This (no-contact legislation) would minimise the opportunity for victims to be intimidated or re-traumatised by offenders," Mr Parke said. "The key to the proposal is in the detail, which we haven't seen yet". People Against Child Sexual Abuse spokeswoman Hetty Johnston also welcomed the move but questioned how it would work if the offender had assaulted a family member. "The idea is great in theory but it's a little bit open ended and I would like to see the guidelines," she said. Mr Foley announced his no-contact legislation on the same day The Courier-Mail revealed Beattie Government plans to abolish jail sentence remission in a bid to prevent offenders being released without community supervision. Prisoners Legal Service spokeswoman Karen Fletcher said removing remission would mean prisoners with jail sentences less than two years would spend more time in jail. Corrective Services Minister Tom Barton is due to take the plans to Cabinet for a new system of conditional release aimed at preventing child molesters at risk of re-offending being released unsupervised into the community. Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 21

Title Campaign of fear. Author Karen Milliner Source Courier Mail Date Issue 28/01/00 Page 13 It’s an Opposition politician's dream: an aggrieved crime victim, whose tormentors received seemingly light sentences, gathers a bucketload of signatures on a petition and announces her intention to campaign for an anti-government vote in an upcoming by-election crucial to the government's fortunes. The victim in this scenario is mother-of-two Sonja White who, while working at a service station in Kingston on Brisbane's southside in October 1998, was robbed at gunpoint by two allegedly drunken youths. The youths were sentenced last April to 12 months' intensive correction orders which effectively amounted to home detention. The sentence outraged White, who claimed one of the youths returned to the service station soon afterwards to taunt her. Responding to pressure, Attorney-General Matt Foley appealed, seeking three- year jail terms for the pair. His efforts in the Court of Appeal failed. Since then White has worked hard to collect more than 30,000 signatures on a petition calling for tougher jail penalties for hardened criminals. And on Wednesday she announced she would be writing to voters in her local area, Woodridge, urging an anti-Labor vote at next month's crucial by-election. No wonder Opposition Leader Rob Borbidge was standing contentedly by her side at the time. Never mind that only the Liberals, and not Borbidge's Nationals, are fielding a candidate in Woodridge as well as in Bundamba, where the second by- election crucial to Labor's hold on power will be held. Law-and-order issues have been increasingly seized on by politicians as potential vote-winners, even though crime rates are not soaring to the extent many people perceive. The latest available statistics from the Queensland Police Service show that reported offences in the state per 100,000 people rose only 3 percent from 1997-98 to 1998-99. According to reader in government at the University of Queensland, Dr Paul Reynolds, targeting law and order is often much more about rhetoric than achieving results. "I think it is raised when politicians essentially have nothing better to think about," Reynolds says. "It's feel-good stuff that people want to hear. It's also always the easy option and it's often effective in socially deprived areas because you'll always find someone who's been beaten up, had their house broken into, where you've got a lot of people unemployed and a lot of people on social welfare. "What's called ‘crime’ in many of these areas is opportunistic, antisocial behaviour, whether it's graffiti, or vandalism, or break and entering the corner shop, or terrorising the old lady on the block because you're 15 and half-pissed and don't have anything to do. It's opportunistic crime that is socially based. "Even the most superficial study of criminology suggests that the causes of crime, and thus the solutions, are much more complex than just sentencing the ‘lock 'em up and throw away the key’ crackle that you hear on this issue. Page 22 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

"Dealing with crime is about education, it's about parenting skills, it's about social networking, it's about community issues and so on, but all of those things can't be encapsulated in 25 words while you're frothing at the mouth on the hustings". Reynolds says while political conservatives have always tended to raise law and order as an election issue, in the past decade in Queensland the Labor Party "has joined the auction". This appears to be the case in recent weeks with the Beattie Labor Government saying it will back an amendment to the Penalties and Sentences Act giving judges the power to order criminals to stay away from their victims, and also that it is considering abolishing jail sentence remissions to prevent offenders being released without community supervision."No party feels they can be seen to be soft on law and order," Reynolds says. "It's an issue of windy rhetoric, so everyone tries to out-tough and be more hairy- chested than everyone else. "The Labor Party has always been about rehabilitation but they've got to talk about punishment when the other side starts cranking it up". Bond University criminologist Professor Paul Wilson believes the "get tough on crime" stance doesn't always work as a vote puller. And even if it does, voters may have simply been sold a pup. "The experience around Australia shows very clearly that mandatory sentencing and tougher sentences have not worked in terms of reducing crime," Wilson says. "So, you might get yourself elected, but you're not going to do much for the people in the area if you implement the policies. "It's the easiest option in the world for politicians to say, `We're going to throw people in jail for longer periods and throw away the key', but it is not a constructive answer to crime rates. "If you're really serious about it you've got to sit down and analyse particular areas, analyse what the crime problems are, and implement a whole range of policies. You've got to do your homework. Blanket policies will not work unless you've actually analysed what the crime problems are in particular areas, and nowhere have I seen a proper analysis done of that. That would be in the best interests of the electors, not rhetoric which is in the interests of politicians". At the local level, Liberal candidate Gail Austen has decided to play the security face of the law-and-order card in the lord mayoral election race. Austen says the Liberals would extend Queen Street Mall-style security cameras into the suburbs, and also look at adding extra security lighting and security alarm points in these areas. She claims her "Light Up The Night" policy is needed to make people feel less fearful of becoming crime victims if they're out and about after dark. Reynolds says Austen's policy is "mindless, parish-pump stuff". "It's not thought out, it's not costed," he says. "Who's going to pay the electricity bill?. What are you going to do, light up every park and thoroughfare?. And if you decide to start putting security cameras through major thoroughfares, then which ones?. "Who decides which ones? And who's going to monitor them? "Is it going to be 24 hours a day? Where does the Big Brother syndrome start and stop? Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000 Page 23

"Besides, I thought the Liberal Party was supposed to be about individual rights". Ian Dearden from the Queensland Council for Civil Liberties says Austen's security camera proposal is typical election stuff. "It's a basic example of people waving technology around as the cure of all ills without stopping to think for five seconds about what's involved, what are the benefits, what's the down side, and how do you control it," Dearden says. "We've said all along that until Queensland gets privacy legislation that actually covers state and local governments we shouldn't have security cameras at all, because until we get that, we have no protection. "The other fundamental thing is, is it going to achieve anything anyway? Sure, it's all very well to whack a lot of cameras around, but unless you have police officers monitoring them and on the ground responding to them, we know cameras achieve nothing. "Unfortunately it's shoot-from-the-hip stuff without thinking about privacy implications as well as issues like cost and effectiveness". Page 24 Penalties and Sentences (Non-Contact Orders) Amendment Bill 2000

Title ALP plans more police power to revoke bail. Author Franklin, Matthew Source Courier Mail Date Issue 02/02/00 Page 13 Premier Peter Beattie yesterday intensified his law-and-order push by releasing plans for extra powers for police to arrest people on bail without court orders. Under the reforms, police could revoke bail on their own initiative if they had a reasonable belief that an alleged offender was about to breach bail conditions. But the Queensland Council for Civil Liberties revealed late yesterday the provisions already existed in the law and that the announcement was "an absurdity" designed to curry favour with electors in the weekend's Woodridge and Bundamba by-elections. The proposal was the latest in a series of Beattie Government law-and-order announcements made in advance of the by-elections, which Labor must win to retain its grip on majority government. Last week the Government said judges would be empowered to order offenders to stay away from their victims and also announced reform of the state's system of remission of prison sentences. And on Monday, Mr Beattie announced plans to allow police to cede extra powers to security officers to help control major public events such as the Goodwill Games. Under the Police Powers and Responsibilities Bill, unveiled yesterday, police could arrest a person on bail without seeking court permission if they believed they were harassing their alleged victims. Police also would have discretion to arrest a person on bail if they reasonably believed the person might not appear in court or might contravene their bail conditions. "We believe this is a modest increase in police powers but it is the right direction," Mr Beattie said. "It further demonstrates our approach of being tough on crime and tough on the causes of crime". Mr Beattie said the changes were particularly aimed at protecting victims of crime and witnesses by ensuring they were not bothered or intimidated by alleged offenders. Police also would be able to arrest escaped prisoners, or prisoners in the process of escaping, without a warrant. QCCL vice-president Terry O'Gorman said the existing Bail Act already gave police the powers Mr Beattie had announced. "These proposals are just by-election absurdity," Mr O'Gorman said. "The proposal is to all intents and purposes a rehash of existing provisions except that it provides the basis for a more arbitrary approach by police. This really smacks of desperation by a Premier who seems intent on running a one-man law-and- order auction". Opposition justice spokesman Lawrence Springborg said the new bail proposals represented a vote of no confidence in Attorney-General Matt Foley, who already had power to appeal against unreasonable bail decisions. Last year, Mr Foley had legislated amendments to the Bail Act giving himself power to appeal in cases where people believed bail or particular bail conditions were unreasonable. "If the Attorney-General was doing his job we wouldn't have to be doing this," Mr Springborg said. This Publication:

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