Domestic (or ‘family’) violence includes not only physical violence, but sexual violence, emotional abuse, verbal abuse, property damage, financial abuse, threats to harm, and stalking. In the circumstance of an alleged domestic assault police have the power to issue an intervention order, lay criminal charges, or both.
Police have the power to issue interim intervention orders, which require the you to attend Court (usually within 8 days) for the Court to decide if the order should be confirmed or revoked. An intervention order is ongoing and continues in force until it is revoked by a Court.
If you are charged with committing an offence there is usually a presumption in favour of your being granted bail and released from custody pending trial. However, if you are charged with breaching an intervention order (due to alleged physical violence or threat of physical violence) then you are deemed to be a ‘prescribed applicant’.
Similarly, if you have been charged with an aggravated offence involving physical violence or a threat of physical violence (e.g., aggravated assault) – and the aggravating factor is that you contravened an intervention order – then you are deemed to be a ‘prescribed applicant’.
This means that there is a presumption against bail and it is up to you to prove that there are special circumstances that justify why you should be released on bail.
For more information about special circumstances and if they are relevant to your matter you should contact a lawyer. Call us on 08 8120 3783 to book an appointment with one of our experienced lawyers.
[Bail Act 1985 (SA) s 10A]
If you are ordered pursuant to an intervention order to attend an intervention program and you do not the maximum penalty is $1,250 and an expiation fee of $160.
If you contravene any other term of an intervention order the maximum penalty is 2 years’ imprisonment.
If you are found guilty of contravening any term of an intervention order the Court may, in addition to imposing a penalty for the offence, order you to make a payment toward the cost of any intervention program you are required to undertake in accordance with the intervention order.
[Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31]
It is an offence to assault another person without their consent.
This offence is contained in section 20 of the Criminal Law Consolidation Act 1935 (SA).
A person may commit an assault if they:
- intentionally apply physical force to another person;
- intentionally make physical contact with another person, knowing that they might reasonably object to the contact;
- threaten (by words or conduct) to apply force to another person, where that person reasonably believes that the threat will be carried out;
- do an act with the intended purpose to apply force to another; or
- accosts or impedes another in a threatening manner.
An assault (or any other offence committed under the Criminal Law Consolidation Act 1935 (SA)) will be aggravated if it occurs in a domestic context.
As outlined in section 5AA in Criminal Law Consolidation Act 1935 (SA), an offence will be aggravated if the victim is:
- a spouse (or former spouse);
- a domestic partner (or former domestic partner);
- your child;
- a child of a spouse (or former spouse);
- a child of a domestic partner (or former domestic partner);
- a child who normally or regularly resides with you or a spouse (or former spouse) or a domestic partner (or former domestic partner).
- any child under the age of 12 years’ old.
The offence will also be aggravated if the alleged offence contravened any prior order of a court and the offence lay within the range of conduct that the order was designed to prevent (e.g., a breach of an intervention order or bail agreement).
The maximum penalty for a basic assault is two years imprisonment.
For an aggravated offence, the maximum penalty is three years imprisonment.
Further, where the offence is aggravated by use of, or threatened use of an offensive weapon, the maximum penalty is four years imprisonment.
For an aggravated offence of assault causing harm, the maximum penalty is four years imprisonment.
Further, where the assault causing harm is aggravated by use of, or threatened use of an offensive weapon, the maximum penalty is five years imprisonment.