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Double Punishment for Domestic Violence Contraventions

Defendants generally cannot be punished for the same act or omission twice unless an Act expressly allows this to occur.

The Domestic and Family Violence Protection Act 2012 (Qld) seemingly allows police to charge defendants with both a contravention of a domestic violence order (DVO) and a related criminal offence based on the same facts. Section 138 provides:

  • An application under this Act may be made, and a court may deal with the application, even if a person concerned in the application has been charged with an offence arising out of conduct on which the application is based.

(3) To remove any doubt, it is declared that, subject to this section, an application, proceeding or order under this Act in relation to the conduct of a person does not affect—

(a) any proceeding for an offence against the person arising out of the same conduct; or

(b) any civil liability of the person.

(4) The person may be punished for the offence mentioned in subsection (3)(a) despite any order made against the person under this Act.

However, it is less clear whether this provision allows defendants to be punished for both the contravention and the other criminal offence. Section 138 has been interpreted in two recent cases with conflicting results. In R v MKW [2014] QDC 300, the defendant pleaded guilty to contravening a domestic violence order and was sentenced, but was then charged with grievous bodily harm for the act that formed the basis of the contravention charge. His Honour Judge O’Brien found that section 138 allowed the criminal proceedings for grievous bodily harm to continue. However, His Honour noted that the rule about double punishment needed to be taken into account in sentencing.

In QPS v DLA [2015] QMC 6, the defendant was charged with a contravention and using a carriage service to menace or harass. The same facts were used as the basis for each charge. His Honour Magistrate Bucknall found that section 138 did not expressly allow for a defendant to be punished twice for different criminal offences arising from the same act or omission. His Honour ordered a permanent stay of proceedings for the contravention charge. His Honour also suggested that convicting and not further punishing a defendant for a contravention in this situation is not a suitable resolution due to the effect of a prior conviction on penalties for future contraventions.

Due to the inconsistent findings in these cases, the law is unsettled and it is uncertain whether defendants can be punished for both contraventions and related criminal offences arising out of the same act or omission.

What does this mean for my criminal proceedings?

Defendants can be sentenced to higher penalties for contravening a DVO if they have been convicted of a domestic violence offence (including a contravention) in the five years before committing the new contravention. Therefore, it is important to be aware of the options you have to avoid being convicted for a contravention when you are also charged with a related criminal offence.

If you are charged with both a contravention and a related criminal offence (e.g., an assault offence), you or your lawyer will need to closely examine the facts being alleged by the police and consider whether the facts of each offence are the same. If they are, you have the option of negotiating with the Police Prosecutor to have the contravention charge withdrawn. If this is unsuccessful, you can apply to the Court to stay proceedings for the contravention.

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