Sydney, NSW - August 19, 2024 - Part 3 Division 6A in the Crimes Act 1900 (NSW) commenced on 01 July 2024. Section 54D Crimes Act 1900 (NSW) creates the offence of Abusive behaviour towards current or former intimate partners also referred to as coercive control.
The offence carries a maximum penalty of 7 years imprisonment.
NSW follows other jurisdictions such as Tasmania, Scotland, England and Wales in enacting such offences.
According to Criminal lawyer Blacktown and Principal of AMA Legal, the NSW offence may only be able to capture a limited course of conduct as there is a precaution built into the offence and there is an applicable statutory defence contained in section 54E Crimes Act 1900 (NSW).
The prosecution bear the onus to prove, beyond a reasonable doubt, the following elements:
1. The defendant is an adult, and
2. The defendant has engaged in a course of conduct against their current or former intimate partner which consists of abusive behaviour, and
3. The defendant intended the course of conduct to coerce or control their current or former intimate partner, and
4. A reasonable person would consider the course of conduct to cause any or all of the following:
a. cause fear of use of violence, and/or
b. cause a serious adverse impact on the capacity of the intimate or former intimate partner to engage in some or all of the person's ordinary day-to-day activities.
According to Criminal lawyer Blacktown and Principal of AMA Legal, the offence creates a high bar for the prosecution as the prosecution must prove the intent of the defendant unlike in England and Wales were intention and/or recklessness can satisfy the elements of the offence.
Part 3 Division 6A in the Crimes Act 1900 (NSW) has also created a statutory defence in section 54E Crimes Act 1900 (NSW) that is a defence if the course of conduct was reasonable in all the circumstances.
Part 3 Division 6A in the Crimes Act 1900 (NSW) applies only in relation to behaviour that occurred, or is alleged to have occurred, on or after 01 July 2024.
According to Criminal lawyer Blacktown and Principal of AMA Legal, it may be sometime before jurisprudence regarding the division and case law is developed.
In the second reading speech of the bill, NSW Attorney General stated:
Of 112 intimate partner domestic violence homicides that occurred in New South Wales between 2008 and 2016, the Domestic Violence Death Review Team found that there was intimate partner abuse using coercive controlling behaviours towards the victim in every case bar one.
This division seeks to criminalise coercive and controlling behaviour with the aim that it will not lead to domestic violence homicides.
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