DFV e-Newsletter: October 2018
 
Domestic and Family Violence Update
  • Court of Appeal strangulation decisions & Case Law Updates
  • Webinar: Lt Mark Wynn
  • Quick reminder: Section 91(2)
  • Legislation Update
  • Recent research and reports
  • Materials from recent Lunch Time Seminar Series
 
Case Law Updates
Strangulation cases: The Court of Appeal has delivered two recent decisions in appeals against sentencing for the offence of choking, suffocation and strangulation in a domestic setting. In R v MCW [2018] QCA, Mullins JJ delivered the lead decision. R v MCW was considered and followed by Bowskill J in her lead judgment in R v MDB [2018] QCA 283.
R v MCW [2018] QCA 241

Court of Appeal   

Philipiddes JA and Mullins and Bodice JJ
Application for leave to appeal against sentence on grounds that sentence manifestly excessive and a failure to accord procedural fairness by denying an opportunity to be heard on decision not to fix a parole eligibility date. Application refused.
 
 
Read more here
R v MDB [2018] QCA 283

Court of Appeal

Gotterson and McMurdo JJA and Bowskill J
 
Application for leave to appeal sentence on grounds sentence manifestly excessive refused. Considered R v MCW [2018] QCA 241. At [52], “Taking into account the maximum penalty of seven years imprisonment, the imposition of four years imprisonment for this offending, by this applicant, cannot be said to be unjust or unreasonable.” 
Read more here
RJD v Queensland Police Service [2018] QDC 147

Morzone QC DCJ
Appeal against sentence on grounds that sentence manifestly excessive. The Magistrate was not referred to, nor appeared to take into account, the reoffending that breached an earlier probation order. However, a different sentence would not have been imposed and the sentence was not outside the permissible range of sentences for the offender and the offences.
Read more here
Queensland Police Service v JSB [2018] QDC 120

Fantin DCJ
Appeal against sentence on grounds that the sentence imposed was manifestly inadequate. Considered whether “violence” in the s.9(2A) Penalties and Sentencing Act 1992 extends to emotional and psychological abuse.
 
Read more here
 
 
 
 
Webinar

Sexual Assault: Myths and Misconceptions

Retired Lt. Mark Wynn was recently in Brisbane presenting a series of lectures on sexual assault and domestic violence. Fullbright specialist Lt. Wynn is a leading expert in domestic violence and stalking and has been educating police, judges, legislators, health care professionals and victim advocates all over the world for over 30 years. Lt. Wynn delivered a very informative webinar for the Queensland Centre for Domestic and Family Violence Research on 3 October 2018 entitled Sexual Assault: Myths and Misconceptions. Lt. Wynn spoke about how the impacts of trauma are frequently misinterpreted as a victim not telling the truth, that is a victim contradicting herself, stopping and starting, going back and forth, getting things out of order, not having things together. Watch the webinar here.
 
Quick Reminder: Section 91(2)
Domestic and Family Violence Protection Act 2012

Variation of domestic violence orders

When considering an application for a variation of a domestic violence order, section 91(2) mandates that the court must consider (1) the grounds set out in the application for the protection order [emphasis added]; and (2) the findings of the court that made the protection order.

In
ECW v ECW [2018] QDC 166, Horneman-Wren SC DCJ was not satisfied that the Magistrate hearing the application for a variation had read the application outlining the grounds for the application raised or the affidavit material filed by the parties. In allowing the appeal, his Honour found that there had been a failure on the part of the Acting Magistrate to hear and determine the variation application according to law.
 
Legislation Update

New South Wales introduces indefinite orders and new strangulation offence

New South Wales introduced the Crimes Legislation Amendment Bill 2018 in the Legislative Assembly on 17 October 2018. The Bill proposes amendments allowing a court to specify that an apprehended domestic violence order (ADVO) made against a person over 18 remains in force for an indefinite period, in severe cases where other interventions have failed. The Bill also proposes increasing the default period for ADVOs (from 1 year to 2 years for defendants over 18) and requires ADVOs to remain in place for two years after an adult domestic violence offender is released from prison, unless the court determines otherwise. A new strangulation offence is also proposed with a maximum sentence of five years imprisonment. The new offence will be dealt with summarily unless the prosecutor or person charged elects otherwise.

The Bill is currently progressing through the parliamentary process. The Bill, if passed, will have implications for Queensland magistrates varying New South Wales orders under the national domestic violence order scheme.
 
 

Recent Research Reports

Fourth Action Plan (2019-22) National Plan to Reduce Violence Against Women and Their Children
Department of Social Services
25 September 2018
 
The Department of Social Services released the Fourth Action Plan (2019-22) of the National Plan to Reduce Violence Against Women and Their Children on 25 September 2018.
Read the Fourth Action plan here.


Discussion Paper: Review of the Family Law System
Australian Law Reform Commission
2 October 2018

The Australian Law Reform Commission (ALRC) released a discussion paper of the Review of the Family Law System on 2 October 2018.
Read the discussion paper here. The discussion paper outlines “124 proposals for change to the family law system, with a focus on support for children in the family law space, improving public understanding of the family law system, accessible and coordinated service delivery, and enhanced oversight of the family law system and its workforce.” Submissions are due by 13 November 2018. The final report of the ALRC review is due to be delivered to the Attorney-General by 31 March 2019.


Who reports domestic violence to police? A review of the evidence
Australian Institute of Criminology
October 2018

Analyses 21 Australian and international quantitative studies of victim self-report data to identify factors associated with victim reporting of domestic violence to police. The analysis found that victims who are female, non-white, experiencing frequent violence and who have been abused in the past are more likely to report. Incidents that involve serious violence, an intoxicated offender and/or child witnesses are also more likely to be reported to the police.
Read the report here.
 
 
Recent Lunch Time Seminar Series 

Materials from the recent Lunch Time Seminar Series can be accessed here:

18 Sept: Professor Heather Douglas: Domestic and family violence, mental health and well-being, and legal engagement
Published paper

 
2 Oct: Dr Philip Stahl: The effects of domestic violence on children and considerations in domestic violence proceedings
Link to short video played by Dr Stahl - First Impressions: Exposure to Violence and a Child’s Developing Brain
Access Dr Stahl’s website here

16 Oct: Judge Eugene Hyman: Non-adversarial approaches to domestic violence: putting therapeutic theory into practice
Published paper
 
 

Quick links

* Links to pages on Magistrates Intranet & other pages that are not publicly accessible.
 
 

From the Chief Magistrate's Desk:
Issue One, July 2018

Read the previous issue here

From the Chief Magistrate's Desk:
Issue Two, August 2018

Read the previous issue here

From the Chief Magistrate's Desk:
Issue Three, September 2018

Read the previous issue here
 
 

What would you like to be reading here?

Do you have ideas for topics for upcoming editions? Please email these through to: michelle.weaver@justice.qld.gov.au. 
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