Recommendations for reform
Noting family violence on the criminal record
8.18We recommend a further legislative amendment to the Crimes Act:
- R3 The Crimes Act should be amended to require that, if a person pleads guilty to the strangulation offence or is found guilty of the strangulation offence, and the court is satisfied that the offence was a family violence offence, the court must direct that the offence be recorded on the person’s criminal record as a family violence offence.
8.19It is important that judges, when making decisions about an offender on matters like bail and protection orders, know when a previous strangulation offence was committed in family violence circumstances. The risk of a future fatal attack arises only when strangulation occurs in family violence circumstances, so that risk will not in itself be evident from a conviction for strangulation on the criminal record unless the family violence circumstances are also noted. Otherwise, the only way a judge will know of the family violence circumstances (and so the unique risks) is if the Police or prosecution bring it to his or her attention or the judge asks for more details. We consider that the risk of fatality is too important to be left to the practices of prosecutors and judges who will often be operating under considerable pressures. This recommendation will ensure that there is a standard mechanism for noting the record in every case, reducing the burden on individuals.
8.20We described in Chapter 5 that this type of reform has been made in New South Wales legislation, but there, it applies to all offences of personal violence, not just strangulation. While it may be thought that this broader application would also be desirable in New Zealand, this recommendation is limited to strangulation because that is the limit of our terms of reference.
8.21Of course, such a reform would also require a definition of “family violence”. We have not addressed that issue in this Report because such definition will apply much more widely than strangulation and it is being addressed in the Ministry of Justice’s review of family violence legislation.