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;