Consent to breaches

12.65 There is no defence of consent to breach of a protection order in any Australian state or territory. In 1999, the Domestic Violence Legislation Working Group noted in its Report on Model Domestic Violence Laws that stakeholders expressed concern that ‘consent’ to a breach may often have been a response to fear or a threat.^[77] The WA family violence legislation was amended in 2004 to remove the defence of consent to a breach. It was thought that the removal would

reduce the potential for parties to abuse the restraining order process by giving, and then withdrawing consent, or by asserting consent as a reason for breach of the order.^[78]

12.66 Removal of consent as a defence also sought to signal to the community that a protection order is an order of the court and not an agreement between the parties.^[79]

12.67 A related issue that arises on breach of a protection order is whether it is inappropriate to allow a person who has used violence to rely on the consent of the victim to the breach of the order as a mitigating factor in sentencing. The WA review of family violence legislation found that although consent could no longer be relied upon as a defence to a breach, consent was still being raised by way of a plea of mitigation and accepted by courts.

Police prosecutors have reported that part of the problem is that on a plea of guilty to breach of a restraining order the respondent can plead in mitigation that the protected person invited the breach. The prosecutor, in the context of a busy court list, has no notation to that effect on his brief and, rather than set it down for a defended hearing, may feel pressured to allow sentencing to proceed on that basis. This is compounded when many magistrates take a very dim view of the respondent being charged at all in the circumstances and have demanded to know of the police whether the person protected by the restraining order has been charged.^[80]

12.68 The WA review recommended that consent be removed as a mitigating factor in sentencing on conviction for breach of a protection order.^[81]

Submissions and consultations

How consent is dealt with in practice

12.69 In the Consultation Paper, the Commissions asked whether in practice: (a) persons who breach protection orders raise consent of the victim to the breach as a mitigating factor in sentencing; and (b) courts are treating such consent as a mitigating factor in sentencing.^[82]

12.70 The majority of submissions which addressed these questions stated that, in practice, persons who breach protection orders raise consent of the victim to the breach as a mitigating factor in sentencing, and that courts treat such consent as mitigating.^[83] For example, National Legal Aid submitted that:

There is concern that in some jurisdictions Magistrates are treating consent of the victim as a mitigating factor in sentencing, even when it is apparent that the consent is not genuine.^[84]

12.71 Both Legal Aid NSW and the Women’s Domestic Violence Court Advocacy Service Network submitted that:

[In our experience] defendants who breach protection orders are arguing that the consent of the victim should be a mitigating factor in sentencing. They are effectively arguing that the victim is responsible for the breach as they invited the defendant to engage in the breaching behaviour. It is our understanding that NSW Local Courts are treating consent of the victim as a mitigating factor in sentencing.^[85]

12.72 The Local Court of NSW submitted:

It is not unknown for persons charged with breaching a protection order in NSW to raise the consent of the victim as a mitigating factor in sentencing, and it is taken into account by the Court as such. A fact scenario that frequently arises in cases involving a breach of a protection order is where the protected person has initiated a breach by making contact with the defendant or inviting the defendant to the protected person’s home.^[86]

12.73 Women’s Legal Service Queensland also noted that, in its experience, consent of the victim to the breach of the protection order ‘is often raised by the police’.^[87]

12.74 One legal service provider submitted that courts treated consent as a mitigating factor in sentencing only ‘in some cases’;^[88] and another legal service provider submitted that consent of the victim was not treated as the primary consideration in sentencing.

The fact that it is a breach of a court order and what the actual breach was constituted by are far more important in practice.^[89]

12.75 In a joint submission, Domestic Violence Victoria and others suggested that ‘there may be a need for a separate research study or consultation in this area’.^[90]

How consent should be treated

12.76 In the Consultation Paper, the Commissions asked whether state and territory family violence legislation or sentencing legislation should prohibit a court from considering the consent of a victim to breach of a protection order as a mitigating factor in sentencing.^[91]

12.77 Stakeholder opinions on this issue were divided. Many stakeholders did not agree that a court should be prohibited from considering the consent of a victim to a breach of a protection order as a mitigating factor in sentencing.^[92] The reasons advanced by stakeholders in this regard focused on considerations of fairness and the preservation of court discretion. For example, both Legal Aid NSW and the Law Society of New South Wales submitted that:

As a matter of fairness this should be available to be put in mitigation. If such consent is obtained through intimidation it will carry little weight. If however, it is it genuinely given, it obviously mitigates the seriousness of the offence.^[93]

12.78 One legal service provider stated in a confidential submission that:

It is our view that courts should take the time to consider the range of circumstances applying to situations where the perpetrator asserts there was consent. It is a fact that individuals, do at times, abuse the system of [domestic violence orders] and obtain them when they are not actually afraid of the ‘perpetrator’ and use them for vengeful purposes. This is rare and should not be considered a likely scenario in the average contested breach. However, for the perpetrator to be not allowed to raise the initiating contact etc would seem unjust.^[94]

12.79 The Department of Premier and Cabinet (Tas) submitted that it was justified for courts to take consent into account:

Generally speaking, the fact of agreement (unless the situation deteriorates into another violent/abusive incident) means that the breach is not as distressing for the victim as it would be if it was not agreed. The degree of distress/harm cause must be relevant to sentencing (but not guilt).^[95]

12.80 A number of stakeholders emphasised that judicial discretion should not be limited by such a prohibition,^[96] and that judicial officers should have the ‘utmost flexibility’ in sentencing such matters.^[97] For example, the Law Society of New South Wales submitted that ‘the danger … is that in enacting such a provision the legislators would be taking away from the courts the ability to determine each case on its merits’.^[98] Stubbs suggested that ‘it would be better for judicial officers to be adequately trained as to how to take account of this matter in sentencing rather than to limit their discretion in this way’.^[99]

12.81 Similarly, the Local Court of NSW cautioned against the removal of such discretion:

Due to the complex and diverse nature of family relationships, in the Court’s submission it would be ill-advised to prevent the courts from taking into account the conduct of the victim that contributes to an offence in the course of sentencing.^[100]

12.82 Other stakeholders submitted that a court should be able to take the conduct^[101] or the consent of a victim into account as a matter relevant to sentencing, without expressly stating that such conduct or consent should always be treated as a mitigating factor in sentencing.^[102] For example, National Legal Aid submitted that a court should be able to take into account the full range of circumstances relating to the offence, including any genuine consent of the victim to a breach of the protection order.^[103] The issue then becomes one of weight to be given to the matter, as noted by the Local Court of NSW:

In taking into account the consent of the victim, it is, of course a matter for the Court’s discretion in determining what weight to attribute to the fact on sentencing. For instance, in the event of a protected person inviting the offender to her or his home in contravention of a condition not to approach the protected person, and the offender subsequently committing an act of physical violence against the protected person one might expect that the victim’s initiation of the original breach might carry limited, if any, weight, as a mitigating factor.^[104]

12.83 Two stakeholders expressed qualified support for the proposition that a court should be able to take into account on sentencing the consent of a victim to a breach of a protection order. Support was expressed on the express proviso that the court is satisfied that the victim’s consent was given willingly and without coercion.^[105]

12.84 Other stakeholders submitted that courts should be prohibited from considering the consent of a victim to breach.^[106] Reasons advanced for this position included that:

• it is the responsibility of a defendant to abide by an order;^[107]
• the victim’s consent is ‘irrelevant’;^[108] and
• ‘any consideration of whether conduct is a breach of that order should focus only on the behaviour of the person subject to that order’.^[109]

12.85 The Victorian Government noted that the order is between the court and the respondent, and submitted that:

Making the victim accountable for actions of the respondent may undermine the respondent’s accountability and re-victimise the victim and considering the consent of a victim as a mitigating factor may prevent the victim from reporting to police.^[110]

Commissions’ views

12.86 Under ordinary sentencing principles courts are usually required to take into account the nature and circumstances of an offence,^[111] and the impact of an offence on a victim.^[112] On balance, the Commissions consider that for legislation to prohibit a court from considering all of the circumstances of an offence of breaching a protection order would represent an inappropriate fetter on judicial discretion, and an unjustified departure from ordinary sentencing principles. A relevant—although not necessarily mitigating—consideration in assessing all of the circumstances of an offence involving breach of a condition prohibiting contact with a victim is whether the victim initiated contact or gave free and voluntary consent to such contact. The fact that a victim’s consent may have been coerced is likely to be a relevant consideration in assessing all of the circumstances of an offence. Indeed, the fact that an offender coerced consent should disqualify consent in such circumstances from being considered as mitigating—and, depending on the seriousness of the offence—may entitle a judicial officer, on the facts of a particular matter, to treat such coercion as aggravating.

12.87 The Commissions agree with the view expressed by the Department of Premier and Cabinet (Tas), that the issue of whether a victim genuinely agreed to prohibited contact has a direct bearing on his or her level of distress caused by the contact, and therefore on the impact of the breach. On this analysis too, a victim’s consent to prohibited contact is, at least, a relevant factor in sentencing.

12.88 Therefore, the Commissions are of the view that courts should be able to take the fact of a victim’s consent to contact in breach of a protection order into account in sentencing, and to determine what weight to give that fact in the circumstances of a particular case. The Commissions’ approach is consistent with that taken in guidelines for sentencing for breach of protection orders developed by the Sentencing Advisory Council in Victoria:

It may be relevant that the conditions of the order were contravened following contact initiated by the victim. However, in assessing the degree to which this may mitigate the seriousness of the offence it is important to consider the history of the relationship between the parties, the nature of the contact and the victim’s motivation in making contact (and in particular whether the victim was acting under any pressure or coercion). This may require some consideration of the dynamics of the relationship between the victim and the offender.^[113]

12.89 However, clearly while a victim may initiate contact prohibited by a protection order, or give free and voluntary consent to such contact, he or she can never be taken to consent to any family violence committed in breach of a protection order—and nor should any court entertain such an argument.

12.90 The Commissions do not agree that allowing a court to take into account all of the circumstances of a breach of protection order amounts to making a victim accountable for a respondent’s breach of a protection order. The responsibility for obeying a court order remains on the respondent to the order. A victim’s free and voluntary consent to contact prohibited by a protection order is not relevant to the guilt of the respondent in breaching the order—but it is relevant in determining the objective seriousness of the particular offence and therefore the sentence that ought to be imposed by the court. To disallow unequivocally the consideration of such factors in sentencing would be unfair to those being sentenced for breach of protection orders.

12.91 In expressing these views the Commissions acknowledge the concerns voiced, for example, by National Legal Aid that in some jurisdictions magistrates are treating consent of the victim as a mitigating factor in sentencing when it is apparent that such consent is not genuine. The Commissions consider that proper education and training in this area is critical. The Commissions endorse the recommendation of the National Council to Reduce Violence against Women and their Children for the production of a national bench book on family violence, in consultation with all jurisdictions, and as part of a national professional development program for judicial officers on family violence.^[114] In Chapter 13, the Commissions express the view that a national bench book on family violence could play a significant role in guiding judicial officers in sentencing in family violence matters, and they recommend that such a bench book address sentencing in family violence matters.^[115] The Commissions consider that the bench book should specifically address sentencing offenders for breach of protection orders, and address the following issues in determining the relevance of a victim’s consent to contact prohibited by a protection order:

• it is the responsibility of the person bound by the order to abide by it—not the victim;
• because of the power dynamics in family violence relationships, and how such dynamics might vitiate the victim’s initiation of, or agreement to, contact prohibited by a protection order, courts should satisfy themselves that any such initiation or agreement was freely and voluntarily made or given by the victim before contemplating whether to consider such a factor as mitigating;
• it will depend on the circumstances of each case what weight the court is to give to the fact that a victim initiated or agreed to contact prohibited by a protection order. For example, where genuine consent was given but the respondent commits family violence against the victim in breach of the protection order it would be expected that little, if any, weight would be given to the initial agreement to contact; and
• while a victim may have genuinely consented to contact with the respondent of a protection order, such consent can never be taken to extend to physical or non-physical violence or abuse committed in breach of the order.