Part 5Offences and enforcement

Part 5—Offences and enforcement Division 1—Offences 31—Contravention of intervention order (1) A person who contravenes a term of an intervention order imposed under section 13 is guilty of an offence. Maximum penalty: $2 000 or imprisonment for 2 years. Expiation fee: $315. (2) A person who contravenes any other term of an intervention order is guilty of an offence. (a) in the case of a basic offence—imprisonment for 3 years; (b) in the case of an aggravated offence—imprisonment for 5 years. (2aa) Despite any other provision of this section, if a person contravenes a term of an intervention order (other than a term of an intervention order imposed under section 13) and either— (a) the contravention constitutes a second or subsequent such contravention; or (b) the act or omission alleged to constitute the contravention involved physical violence or a threat of physical violence, the person is guilty of an offence against this subsection. (a) in the case of a basic offence—imprisonment for 7 years; (b) in the case of an aggravated offence—imprisonment for 10 years. (2ab) In determining whether a contravention of an intervention order is a second or subsequent such contravention for the purposes of subsection (2aa), any deemed subsection (1) offence or any previous offence against subsection (2) or (2aa) (whether committed before or after the commencement of this subsection) of which the defendant has been found guilty will be taken into account, but only if the previous offence was committed or alleged to have been committed within the period of 5 years immediately preceding the date on which the offence under consideration was allegedly committed. (2ac) In proceedings for an offence against subsection (2aa) where it is alleged that a deemed subsection (1) offence should be taken into account in accordance with subsection (2ab), any agreed or undisputed facts received in the sentencing court in sentencing proceedings for the deemed subsection (1) offence are, unless excluded in the discretion of the court dealing with the proceedings for the offence against subsection (2aa), admissible as evidence of the conduct in fact engaged in on the occasion alleged for the purposes of the proceedings. (2a) If a person is found guilty of an offence under subsection (1), (2) or (2aa) where the act or omission alleged to constitute the offence involved physical violence or a threat of physical violence, the Court may, in addition to imposing a penalty for the offence— (a) order the convicted person to make a payment of not more than the prescribed amount toward the cost of any intervention program the person is required to undertake in accordance with the intervention order; and (b) make any other order that the Court thinks fit. (3) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against this section if— (a) the person is a person protected by the intervention order that has been contravened; and (b) the conduct constituting contravention of the intervention order did not constitute contravention of the order in respect of another person protected by the order or of any other intervention order (of which the person was or ought reasonably to have been aware) in force against the defendant and protecting another person. (4) Section 11(7) of the Sentencing Act 2017 does not apply in relation to an offence against subsection (1). (5) For the purposes of this section, an aggravated offence is an offence committed in circumstances where the offender knew or suspected, or ought reasonably to have known or suspected, that there was a reasonable likelihood that a child would see, hear or otherwise be exposed to the conduct constituting the offence or to any effects of that conduct. (6) If a person is charged with an aggravated offence under this section, the circumstances alleged to aggravate the offence must be stated in the instrument of charge. (7) An offence against this section must be prosecuted, and dealt with by the Magistrates Court, as a summary offence but if the Court determines that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 5 years, the Court must commit the person to the District Court for sentence. (8) In this section— basic offence—where a subsection differentiates between the penalty for an aggravated offence and the penalty for a basic offence, the reference to a basic offence is a reference to the offence in its non‑aggravated form; deemed subsection (1) offence means an offence charged against subsection (1) of which a person was found guilty before the commencement of this definition even though the person did not contravene a term of an intervention order imposed under section 13 but instead contravened another term of an intervention order. 31A—Special provisions applying to review or appeal in relation to certain offences against section 31 (1) Despite any other Act or law but subject to this section, if applicable review proceedings are instituted in a court (whether before or after the commencement of this section) in relation to a person's conviction or sentence for an offence charged against section 31(1)— (a) the applicable review proceedings are (to the extent necessary) transferred to the Supreme Court constituted of a single Judge (the review court) and jurisdiction is vested by force of this paragraph in the review court to hear and determine the applicable review proceedings; and (b) the person may be prosecuted for an offence against section 31(2) (the section 31(2) proceedings) in respect of the conduct to which the conviction for the offence charged against section 31(1) relates and jurisdiction is vested by force of this paragraph in the review court— (i) to hear and determine the section 31(2) proceedings; and (ii) if relevant, to sentence the person for the offence against section 31(2); and (c) the time within which the section 31(2) proceedings may be commenced is extended by force of this paragraph to— (i) if the applicable review proceedings are instituted before the commencement of this section—the day that is 2 years after the commencement of this section; or (ii) if the applicable review proceedings are instituted after the commencement of this section—the day that is 2 years after the date on which the applicable review proceedings are instituted, but the information charging the person with the offence against section 31(2) must be laid (in accordance with the rules and procedures applicable to the laying of the information in a court of summary jurisdiction) as soon as reasonably practicable after the applicable review proceedings are instituted; and (d) a party to the applicable review proceedings may request that the proceedings be adjourned for a period considered reasonable by the court for the purposes of preparing for the section 31(2) proceedings; and (e) if, in review proceedings, the review court sets aside a conviction for an offence charged against section 31(1), the review court must refrain from making, or stay, any order setting aside the sentence imposed on the person in respect of the offence charged against section 31(1) (the former sentence) pending determination of any section 31(2) proceedings that have been instituted; and (f) any agreed or undisputed facts received in the sentencing court in sentencing proceedings for the offence charged against section 31(1) are, unless excluded in the court’s discretion, admissible as evidence of the conduct in fact engaged in on the occasion alleged, for the purposes of the section 31(2) proceedings; and (g) the court must, in sentencing the person for an offence against section 31(2), take into account the former sentence and, if it is in the interests of justice to do so, may determine that the former sentence (whether already served or being served) is taken to be the sentence in satisfaction of the offence against section 31(2) (together with any other offences if the former sentence consisted of 1 penalty that was imposed in respect of multiple offences) or, if the court does not propose to make such a determination, sentence the person in accordance with the following requirements, subject to any modifications or additional requirements prescribed by the regulations: (i) if the former sentence required the person to pay 1 or more pecuniary sums and the sentence for the offence against section 31(2) also requires the person to pay 1 or more pecuniary sums, the following provisions apply: (A) if the former sentence— • was wholly imposed in respect of the offence charged against section 31(1)—the amount of the pecuniary sums paid by the person in accordance with the former sentence must be deducted from the pecuniary sums imposed in respect of the section 31(2) proceedings; or • consisted of 1 penalty that was imposed in respect of multiple offences, 1 of which was the offence charged against section 31(1)—the review court may declare the amount attributable to the offence charged against section 31(1) and such of that amount as has been paid by the person must be deducted from the pecuniary sums imposed in respect of the section 31(2) proceedings; (B) the amount resulting after a deduction has occurred under subsubparagraph (A) will be taken to be the pecuniary sum owed by the person for the purposes of the Fines Enforcement and Debt Recovery Act 2017; (C) any liability of the Crown, or any other person paid a pecuniary sum in accordance with the former sentence, to repay the pecuniary sum is extinguished; (ii) if the former sentence subjected the person to a type of non‑pecuniary penalty and the sentence for the offence against section 31(2) subjects the person to the same type of non‑pecuniary penalty— (A) if the former sentence was wholly imposed in respect of the offence charged against section 31(1)—the period of the non‑pecuniary penalty under the former sentence must be deducted from the period imposed in respect of the section 31(2) proceedings; or (B) if the former sentence consisted of 1 penalty that was imposed in respect of multiple offences, 1 of which was the offence charged against section 31(1)—the review court may declare the period of the non-pecuniary penalty attributable to the offence charged against section 31(1) and that period must be deducted from the period imposed in respect of the section 31(2) proceedings. (2) The review court may remit section 31(2) proceedings to a court of summary jurisdiction for trial if satisfied that it is appropriate in the circumstances of the case and in such a case— (a) subject to paragraph (b), the trial must be conducted in accordance with the rules and procedures applicable to the trial of such a matter in the court of summary jurisdiction; and (b) subsection (1)(c), (d), (f) and (g) apply to the proceedings in the court of summary jurisdiction as if they were proceedings in the review court. (3) For the avoidance of doubt, a person who institutes applicable review proceedings must seek any extension of time required in accordance with the rules and procedures applicable to the review proceedings. (4) If applicable review proceedings instituted by a person convicted of an offence charged against section 31(1) are dismissed, any section 31(2) proceedings relating to the offence charged against section 31(1) before the review court will be taken to be dismissed without costs. (5) No liability attaches to the Crown in respect of an act or omission relating to— (a) any proceedings against a person for an offence charged against section 31(1) where the person did not contravene a term of an intervention order imposed under section 13; or (b) the imposition and enforcement of any sentence for such an offence. (6) In this section— applicable review proceedings means— (a) an appeal against a judgement given or order made in proceedings for an offence charged against section 31(1) if a ground of the appeal is that the person did not contravene a term of an intervention order imposed under section 13; or Such an appeal may be brought by any party to the proceedings for the offence charged against section 31(1) (b) proceedings for judicial review relating to an offence charged against section 31(1) if an order sought in the proceedings is on the basis that the person did not contravene a term of an intervention order imposed under section 13; conviction for an offence charged against section 31(1) includes the following: (a) a formal finding of guilt by a court; (b) a finding by a court that the offence has been proved; non-pecuniary penalty means— (a) a period of— (i) imprisonment or detention or suspended imprisonment or detention; or (ii) being subject to a bond or obligation; or (iii) home detention; or (iv) being subject to an intensive correction order; or (v) community service; or (b) a caution under the Young Offenders Act 1993, other than an informal caution; or (c) an undertaking made in connection with a family conference under the Young Offenders Act 1993; pecuniary sum means an amount payable pursuant to an order or direction of a court in proceedings relating to an offence, and includes— (a) a fine; and (b) compensation; and (c) costs; and (d) a sum payable pursuant to a bond or to a guarantee ancillary to a bond; and (e) a levy imposed under the Victims of Crime Act 2001. 32—Landlord not to allow access to excluded defendant If— (a) an intervention order prohibits the defendant from being on rented premises at which a protected person resides; and (b) the landlord of the premises has been notified of the prohibition, the landlord is guilty of an offence if he or she provides the defendant with a key to the premises or otherwise assists or permits the defendant to gain access to the premises. Maximum penalty: $10 000. 33—Publication of report about proceedings or orders A person must not publish by radio, television, newspaper or in any other way a report about proceedings under this Act, or an order issued or registered under this Act, if the report identifies, or contains information tending to identify— (a) any person involved in the proceedings (including a witness but not including a person involved in an official capacity or the defendant); or (b) any person protected by the order; or (c) a child of a person protected by the order or of the defendant, without the consent of that person. (a) in the case of a natural person—$10 000; (b) in the case of a body corporate—$120 000. Division 2—Special police powers 34—Powers facilitating service of intervention order (1) If a police officer proposes to issue an interim intervention order against a person, the officer may— (a) require the person to remain at a particular place for so long as may be necessary for the order to be prepared and served; and (b) if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with—arrest and detain the person in custody (without warrant) for— (i) so long as may be necessary for the order to be prepared and served; or (2) If a police officer proposes to apply to the Court for an intervention order against a person, the officer may— (a) require the person to remain at a particular place for so long as may be necessary for the application to be determined and, if an interim intervention order is issued by the Court, for the order to be prepared and served; and (b) if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with—arrest and detain the person in custody (without warrant) for— (i) so long as may be necessary for the application to be determined and, if an interim intervention order is issued, for the order to be prepared and served; or (3) If a police officer has reason to believe that a person is subject to an intervention order that has not been served on the person, the officer may— (a) require the person to— (i) remain at a particular place for so long as may be necessary for the order to be served; or (ii) accompany the officer to the nearest police station for the order to be served; and (b) if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with—arrest and detain the person in custody (without warrant) for— (i) so long as may be necessary for the order to be served; or (3a) If a person accompanies a police officer to a police station in accordance with a requirement under subsection (3)(a)(ii), a police officer must ensure that the person is returned to the place at which the request was made, or taken to a place that is near to that place, unless to do so would be against the person's wishes or there is other good reason for not so doing. (4) The Court may, on application by a police officer, extend a period of detention under this section if satisfied that it is appropriate to do so in the circumstances, but not so that the aggregate period of detention of the person exceeds 8 hours. 35—Powers following service of intervention order (1) If a police officer believes on reasonable grounds that, in conjunction with serving an intervention order, it is necessary to arrest and detain the defendant in custody for a short period to prevent the immediate commission of abuse against a person protected by the order or to enable measures to be taken immediately for the protection of a person protected by the order, the police officer may arrest and detain the defendant in custody (without warrant) for— (a) so long as may be necessary to prevent the immediate commission of abuse against a person protected by the order or to enable measures to be taken immediately for the protection of a person protected by the order; or (b) 6 hours or such longer period as is approved by the Court, (2) The Court may, on application by a police officer, extend a period of detention under subsection (1) if satisfied that it is appropriate to do so in the circumstances, but not so that the aggregate period of detention of the person exceeds 24 hours. 36—Power to arrest and detain for contravention of intervention order (1) If a police officer has reason to suspect that a person has contravened an intervention order, the officer may, without warrant, arrest and detain the person. 37—Power to search for weapons and articles required to be surrendered by intervention order (1) If an intervention order requires the defendant to surrender specified weapons or articles, a police officer may— (a) search the defendant and anything in the defendant's possession for such a weapon or article; and (b) enter any premises or vehicle where such a weapon or article is reasonably suspected to be and search for such a weapon or article, and take possession of the weapon or article. (2) A police officer may use reasonable force in the exercise of powers under this section (including reasonable force to break into or open any part of, or anything in or on any premises or vehicle). (3) In the exercise of powers under this section a police officer may be assisted by such persons as he or she considers necessary in the circumstances. Division 3—Disclosure of information 38—Disclosure to police of information relevant to locating defendant A public sector agency that is bound by the State's Information Privacy Principles, or a person providing services to a public sector agency under a contract that provides that the person is bound by the State's Information Privacy Principles, must, on request, make available to a police officer information under the control of the agency or person that could reasonably be expected to assist in locating a defendant on whom an intervention order is to be served.