Page 1618 - Week 05 - Thursday, 2 June 2022
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published its report on 14 April. The government thanks the standing committee for its report and has now carefully considered its seven recommendations.
The government notes and welcomes the recommendation for the Assembly to pass the Family Violence Legislation Amendment Bill. This recommendation is recognition by the standing committee of the essential nature of the law reform in this bill, as part of our work to better respond to and prevent domestic and family violence in the territory. The ACT government has also agreed to four recommendations of the standing committee.
First, the government has agreed to the recommendation to review the impacts of an offender’s ability to access restorative justice practices and community corrections orders as a result of longer sentences under the aggravated offence scheme. These matters were also the subject of consideration during the initial development of the bill. Offences can be referred for restorative justice at various points—for example, by ACT Policing or the Director of Public Prosecutions—which may be instead of a formal prosecution, or they can be referred by the courts, which cannot be done as an alternative to prosecution. This policy approach, as set out in the Crimes (Restorative Justice) Act 2004 is grounded in the belief that, while restorative justice can be beneficial for all offences, offences that are extremely serious still need to be dealt with through the formal legal system.
The increased maximum penalties for some of the aggravated offences would make it so that the offender could only be referred after the courts, who have been able to give the most comprehensive consideration to all perspectives and circumstances, have determined to do so. The treatment of these offences would be consistent with the pre-existing policy approach in restorative justice legislation, and the effects of this will certainly form part of the government’s future approaches. The government also considered the interaction between the new aggravated family violence offences and the ACT sentencing framework during the development of the bill. Importantly, the sentencing options, including for intensive correction orders and suspended sentences, are not directly impacted by the maximum penalties available for the new offences.
Secondly, the government has agreed to the recommendation to investigate whether sentencing based on breaches of trust, rather than breaches in the context of family relationships, may result in fairer justice outcomes. I note at the outset that an offender being in a position of trust or authority is already one of the general sentencing considerations. As to the matter of aggravation, clearly, breaches of trust are a key part of what is so especially abhorrent about family violence offending.
However, this is a complex and novel area of policy. Whether breaches of trust are the primary characteristic we are seeking to denounce or whether there are other similarly important characteristics as to why we need to regard this kind of offending so seriously, and how those could be legislated and proven at trial, are all issues we will need to work through and consult on. For the time being, however, a response is clearly required, given the Court of Appeal’s finding that there was no legislative basis for taking a special approach to sentencing for family violence offending.
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