Law Week 2012 hypothetical part 5

[Law Week Hypothetical 2012]
[Continues from part 4]

>> Kay McGrath: Can I go back to Judge Butler and ask, do you have the power to make Jacob attend any violence prevention program to address his violence issues? Can you make Jacob do that?

>> His Honour Judge Brendan Butler: Under the current legislation, no.

There is new legislation which will commence in September that will make provisions for orders of that type, but at the present time the most that a Magistrate could do - and I've done this with people - is to adjourn the matter for a length of time where a person like Jacob is agreeing to go and get counselling, for example, and just adjourn it so that there's an opportunity for that to happen and he can come back and report to the court that it's happened.

But that has to happen on a voluntary basis at present.

>> Kay McGrath: Okay, all right, well in Jacob and Samantha's case, the Magistrate makes a final protection order with the condition - these are the conditions that Jacob has to abide by: he not approach Sam's workplace or her home and he has to stay 100 metres away from Samantha at all times.

Well, a month goes by and it's all calm.

There's been no contact from Jacob, then one night Sam notices Jacob's car. It's parked at the end of her parents' street. Heart starts thumping, I'm sure.

A few days later, Samantha's walking Lucas in|the pram and she notices again, Jacob's car away in the distance. He's following her; he's stalking her slowly down the street.

She's very concerned, as you would be, about her safety, so she reports this behaviour to the police.

Mark Wheatley, can we ask you, could you go and arrest Jacob for this behaviour? Has he breached this order? Will he have to go back to court?

>> Inspector Mark Wheatley: I think on these facts, Kay, his behaviour's very strongly inclined - he's intimidating and harassing. I think, just based on the short information we have, so yes, he's not there by accident.

I think you know, if he was driving past, probably it's bordering on the 50/50 was he driving past unrelated - Well, unlikely, but we get to the stage now where this is a criminal investigation, unlike the breach - sorry, unike the actual application that's a civil process.

Once the process that Judge Butler was talking about - once the order that's in place, still a civil order, but then when they breach that, the DV Act then talks about this criminal standard or this criminal offence of a breach, yes, he's breached that.

He can be taken into custody and charged with a breach of the domestic violence order based on his intimidation.

>> Kay McGrath: How likely is it that that would happen?

>> Inspector Mark Wheatley: Oh yes, very likely.

>> Kay McGrath: An officer would be there and tap him on the shoulder?

>> Inspector Mark Wheatley: Yes, look, he's - and unfortunately this is a not unusual occurrence, a breach on - oh, I wasn't doing anything, I was just down the end of the street.

>> Kay McGrath: Well we saw 8033 breaches, I think, last year, so...

>> Inspector Mark Wheatley: Yeah, exactly, huge, so yes, very much so.

Irrespective of the distance of 100 metres, even though this might be 300 metres, his behaviour is clearly designed to intimidate and harass her.

>> Kay McGrath: Judge Butler, so Jacob's back before you. Can you change the - update the conditions of this protection order now that he's obviously breached it, not taking it seriously?

>> His Honour Judge Brendan Butler: Yes, where a breach occurs that would be an opportunity to consider the protection order. Indeed, either party at any stage can make an application to vary or revoke a protection order if circumstances change.

>> Kay McGrath: What about a penalty, can you punish him for breaching it and will he get a criminal record out of this?

>> His Honour Judge Brendan Butler: Yes, well as the Inspector said, the breach of a domestic violence order is a criminal offence. It's prosecuted under the Justices Act as a summary offence in the Magistrates Court and a person who breaches the order is then liable to a penalty. The basic penalty is a maximum of $4000 fine or one year imprisonment.

>> Kay McGrath: Oh, that'd hurt.

>> His Honour Judge Brendan Butler: In fact, if you're coming up for the third time in three years, there can be a maximum of two years imprisonment.

Now, before the Magistrates Court, of course, that would have to be prosecuted the same way a criminal offence and there could be a trial if it's not admitted and ultimately a sentence would be imposed.

>> Kay McGrath: Thank you. Well we've heard a lot about the processes that are in place for Samantha, but Jacob's in a bit of trouble too, isn't he?

I'd like to welcome Helen Poynten from Relationships Australia. Thanks for coming along, Helen.

>> Helen Poynten: Thank you, do you mind if I stand?

>> Kay McGrath: I would love you to stand. I'll stand with you because I don't want to appear short. [laughs]

Tell us what supports are in place for people like Jacob who are struggling, obviously, with his behaviour?

>> Helen Poynten: Okay, thanks, Kay.

I'd just like to say thank you for inviting me to talk today because Relationships Australia is an organisation based on social justice principles and that's about reducing violence in our community.

I might turn round here so the cameras can get your face.

Okay. So this is a serious situation for Jacob. There are different alternatives to help him in this situation. There is individual counselling that Relationships and other organisations like DV Connect Mensline offer.

But research is showing that for the greater capacity for change, groups are more helpful for people like Jacob. So we send them to behaviour intervention groups and these groups aren't anger management, they're about changing perceptions about that right to use violence in the relationship.

>> Kay McGrath: How many perpetrators would go willingly to these courses?

>> Helen Poynten: Very few [laughs] because, like Heather was talking about, it's that chosen decision to use violence in that relationship. So to own up, to say I'm using a destructive behaviour in my relationship is quite difficult for people to take ownership of it.

So we find a lot of them are mandated through the courts.

>> Kay McGrath: Do you have any statistics or any idea of how successful these programs can be?

>> Helen Poynten: Unfortunately I do.

It's about five per cent, so that margin of change is quite low, but we think well, that's one in 20 that are changing. So that's one in 20 families' fathers...

>> Kay McGrath: What do we have to do differently? Now that's a tough question.

>> Helen Poynten: [laughs] I think that's a thesis in it's own right. I think things like this are helpful.

I think having shared dialogue, I think having the confidence to come and say this is an issue in our community and that we need to work together and have the courage in our men and in our women and in our families and our communities to do something about it.

>> Kay McGrath: Thank you, well said. Thank you, Helen.

Back to our researcher Heather, what can you tell us about the perpetrators who continue to breach the orders that Brendan has set down?

Paint us a picture of this sort of person.

>> Heather Nancarrow: Look, interestingly there's very little empirical research about perpetrators who breach orders.

We know that over the last three years, since about 2008, there have been about 20,000 orders on average each year in Queensland and about just over nine thousand - nearly nine and a half thousand - orders are breached or breaches have been reported, but we need to be careful about that because it doesn't mean that almost half of the total number of orders have been breached because we know that some respondents breach orders many times and we don't know how many respondents actually breach repeatedly.

We also don't know, for each of those who breach repeatedly, how many times, but the latest figure I've heard from workers in the field of one case that they've known an individual who's breached an order 300 times.

It seems incredible.

So when you're looking at the number of reported breaches, and some individuals are breaching up to 300 times, you see how we'd quickly get to that figure of about nine and a half thousand breaches.

But we need to be careful about how that's interpreted; otherwise I think we'd lose faith in the system if we were believing that almost half of the orders are breached.

As I said we don't have empirical research to show very much at all about the nature of the people who are breaching and particularly the repeat offenders.

However, I have a hypothesis based on research from the US, in the research that's looked at the men who continue to perpetrate domestic violence even after arrest. Repeat offenders are men who lack a stake in conformity. So the law...

>> Kay McGrath: Men who lack?

>> Heather Nancarrow: They lack a stake in conformity is the term that Sherman and Burke, who actually initiated the research that led to pro-arrest policies. Their subsequent research found that there are particularly groups of men for whom violence escalated after arrest.

So there's a group of men out there for whom the law holds no fear.

I think that in some cases and perhaps many cases, they will be the ones who are repeat offending and repeatedly breaching protection orders because the have no respect for the law, they have no respect for themselves, for their family, they're self-righteous, they think that - and they often tell their partners - nothing can stop me from doing this; the law can't hold me accountable.

So it's quite frightening to see this repeated that nothing can stop these guys and that's often something that they've told their partners and those women are particularly at risk, I would say.

The stalking event of Jacob after having had an order made, is particularly frightening.

[Part 5 ends – continues in part 6]

Last updated 4 November 2015