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DFV e-Newsletter: October 2018
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Domestic and Family Violence Update
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- 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
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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.
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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.
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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.”
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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.
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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.
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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.
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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.
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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.
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Fourth Action Plan (2019-22) National Plan to Reduce Violence Against Women and Their ChildrenDepartment 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 SystemAustralian 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 evidenceAustralian 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.
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* Links to pages on Magistrates Intranet & other pages that are not publicly accessible.
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From the Chief Magistrate's Desk: Issue One, July 2018
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From the Chief Magistrate's Desk: Issue Two, August 2018
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From the Chief Magistrate's Desk: Issue Three, September 2018
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