John is the subject of a current domestic violence order in respect of his partner, Jane.
John subsequently assaults Jane, resulting in him being charged both with breaching his domestic violence order and with a separate count of assault.
In such circumstances, can John be punished for both offences?
Criminal law practitioners will be familiar with this scenario. One of the fundamental principles of our criminal justice system is that a person cannot be twice punished for the same act or omission. There are exceptions to this rule though, including when an Act otherwise expressly provides that it is permitted.
The Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) contains provisions which, on their face, appear to allow matters under the DFVPA and related criminal proceedings to both proceed.
This article examines whether those provisions of the DFVPA constitute an
exception to section 16 of the Criminal Code Act 1899 (Qld) (Criminal Code), such that offenders can be punished for both a domestic violence order (DVO) breach and a related criminal offence.
Section 16 of the Criminal Code provides that a person cannot be twice punished for the same offence:
“A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”
Section 45 of the Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act) also states that an offence is punishable only once:
“(1) If an act or omission is an offence under each of 2 or more laws, the offender may be prosecuted and punished under any of the laws, but the offender may not be punished more than once for the same offence.
(2) Subsection (1) applies to a law unless an Act otherwise expressly provides…” Section 138 of the DFVPA deals with a concurrent criminal proceeding:
“(1) 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 pplication, 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.”
Two Queensland cases have considered the interplay between these provisions, expressing different views on the matter. In both cases it was accepted that the same act was relied on for the breach of DVO offence and the substantive criminal charges, and that this would normally constitute a breach of section 16 and meet the test espoused in R v Dibble ex-parte Attorney- General of Queensland  QCA 8. The point of distinction in the reasoning of the two decisions hinged on the interpretation of section 138 of the DFVPA.
R v MKW  QDC 300 (MKW)
In MKW the defendant pleaded guilty to breaching a DVO and was sentenced. At a later time, after a medical report was furnished, police then charged the defendant with an offence of grievous bodily harm arising from the same act that constituted the breach of the DVO.
His Honour Chief Judge O’Brien concluded that the breach of DVO proceedings were “proceedings” under the DFVPA for the purposes of section 138(3). His Honour relied particularly on section 181 of the Act, which provides that “proceedings for an offence against the Act” must be taken summarily. His Honour saw that provision as making plain that breach proceedings were contemplated as proceedings under the Act for the purposes of section 138(3), and therefore the related criminal offence proceedings could continue. The application for a permanent stay of the indictment was therefore dismissed.
His Honour went on to note that if his “tentative view” of section 138(4) was correct, then in the event of a conviction in the related criminal proceedings, section 16 of the Code would still need to be considered for sentencing purposes, and at the very least, regard should be had to the penalty already imposed for the breach offence.
QPS v DLA  QMC 6 (DLA)
DLA dealt with a defendant who was charged with using a carriage service to menace or harass and breaching a DVO at the same time; the facts of each charge were identical.
In considering the matter, Magistrate Bucknall had regard to section 45 of the Acts Interpretation Act, and the High Court decision of Pearce v R, which considered a similar legislative provision to section 138 of the DFVPA. His Honour concluded section 138 did not expressly provide for an offender to be punished more than once for different criminal offences comprised of the same act or omission. He declined to follow the District Court’s reasoning in MKW, noting the views expressed there were tentative ones.
Magistrate Bucknall ultimately ordered a permanent stay of the breach proceedings. Importantly, he commented that this issue is not resolved by simply convicting and not further punishing a defendant for a breach offence in these circumstances, given that previous convictions for breach offences may automatically increase the applicable penalty for subsequent breach offences.
The crucial issue is the meaning of “application, proceeding or order under this Act” as that phrase is used in section 138(3) of the DFVPA. If that phrase encompasses criminal proceedings under the Act (that is, breach proceedings), then the section serves as an express exception to the protection of section 16 of the Criminal Code.
Unfortunately the cases decided to date are not consistent. The law therefore remains uncertain and further judicial consideration would seem likely, given the increase in DVO breach proceedings commenced in conjunction with related criminal charges.
It is the writer’s view that there is a strong argument available to resist breach offences and related criminal offences both proceeding in these circumstances, as being contrary to section 16 of the Criminal Code. While the provisions of the DFVPA expressly contemplate mutual DFVPA proceedings and other (related) criminal proceedings, they do not expressly refer to mutual criminal proceedings (that is, breach proceedings under the DFVPA and related proceedings).
It is suggested that there is also a reasonable argument open that, despite section 181 DFVPA, breach proceedings are not proceedings under the DFVPA (as required by section 138(3)), but proceedings under the Justices Act 1889 (Qld) or the Penalties and Sentences Act 1992 (Qld) in respect of an offence against the DFVPA.
It follows that if the DFVPA does not specifically allow for both types of criminal matters – breach proceedings and related criminal proceedings – then the operation of section 16 of the Criminal Code is not displaced, and the offender cannot be punished for both.
Recent decisions of the higher courts suggest that this issue is not always being agitated by practitioners. In circumstances where it is ventilated, it seems courts are commonly convicting and not further punishing for the breach offence.
Considering the increased penalties for breach offences under the most recent DFVPA amendments, stakes are high for clients. As practitioners, we must carefully consider if the factual basis of breach offences and criminal offences are the same. If so, the appropriate course seems to be to enter into negotiations with the prosecutor to withdraw the breach offence. Failing this, an application to stay proceedings might then be made to the court on the basis that section 138 does not allow the breach proceedings to run in tandem with the criminal offence proceedings.
Rachel Tierney is a lawyer at Gilshenan & Luton Legal Practice.
1 S16 Criminal Code 1899 (Qld).
2 S45(2) Acts Interpretation Act 1954 (Qld).
3 S138 Domestic and Family Violence Protection Act 2012 (Qld).
4 In Dibble the primary judge determined that there would be a contravention of s16 of the Code and as such, an abuse of process, in circumstances where the basis of an indictable offence charged was the same “basic act” as that which had constituted a summary offence of which the defendant had previously been convicted.
5 (1998) 194 CLR 610.
6 At paragraph 40: “To the extent to which two offences of which an offender stands convicted contain common elements it would be wrong to
punish that offender twice for the commission of the elements that are common. No doubt the general principle may yield to any contrary
legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”
7 S77 DFVPA
8 It is noteworthy that a discussion of this issue, including MKW and DLA, is found in the DFVPA Magistrates Court of Queensland Benchbook, although no conclusion is reached on the matter and no guidance is given as to how magistrates and practitioners should address this issue.
9 For example: R v MCW  QCA 241; R v Webb, Mt Isa District Court, 4 May 2016. However, it is not always the case that this issue legitimately arises. Careful attention must be paid to the special actions alleged to form the basis of the breach DVO charge and criminal offence/s before considering whether to agitate this issue, for example, R v WKT  QDCPR 25.
10 For example: JWD v The Commissioner of Police  QDC 29; DAY v Commissioner of Police  QDC 3.
This story was originally published in Proctor April 2020.