The new coercive control offence: Some practical aspects Part 1
Introduction
On 1 July 2024 a new coercive control offence commenced, as part of reforms introduced by the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW). The offence criminalises an intentionally coercive or controlling course of conduct that consists of abusive behaviour towards a current or former intimate partner.
The reforms come at a time of significant community concern about the number of domestic violence homicides in Australia. Amendments to bail laws in relation to domestic violence received assent on 20 June 2024 and partially commenced on 1 July 2024.
This article is the first in a two-part series that addresses some practical aspects of prosecuting and defending the coercive control offence. This part introduces some lived experiences and contains an overview of key features of the offence with illustrations. Charge selection is addressed, followed by the recent changes to the bail laws.
Part 2, to be published in the next edition of Bar News, will address election, evidence, defences, sentencing and apprehended domestic violence orders.
The experiences of Lauren and Angelina
Coercive control has been described as ‘insidious domestic abuse involving systematic patterns of behaviour’ that denies victims their independence, autonomy and liberty.[1] Its aim is to subjugate the victim or to create ‘an invisible cage’ of suppression, through violence, intimidation, isolation, control and oppression.[2]
Coercively controlling behaviours can take many forms, and the patterns can be subtle and ‘tailored to the individual circumstances of those involved’.[3] However, some common examples of coercively controlling behaviours include physical, sexual, psychological, financial, technological and social abuse.
The experiences of Lauren and Angelina illustrate some of the dynamics and patterns of coercive control.
Lauren4
Lauren is an Aboriginal woman whose relationship with Alex, a non-Indigenous man, was characterised by control, shame and pervasive fear. Lauren was sexually, emotionally, financially and physically abused by Alex over many years. Alex accessed Lauren’s social media and bank accounts, tracked her location through her phone and repeatedly accused her of having affairs.
Once, when Alex ridiculed and threatened their child, Lauren assaulted Alex to stop him. Alex said, ‘I’ve got you now’. He called the police, and Lauren was arrested for assault. While she was in custody, Alex withdrew the money from their bank account and hired a family lawyer.
It was two weeks before Lauren could speak to police about her experiences. She didn’t have the words for it and thought they wouldn’t believe her. Lauren herself had suffered childhood trauma from domestic violence and mistrusted authority figures like police because when her mother had reported abuse, it had gotten worse.
Angelina[5]
Angelina was born overseas, and English is her second language. After she started a de facto relationship with Barry, Barry sponsored Angelina’s partner visa.
Angelina lost a well-paid job when Barry hid the car keys and refused to let her go to work. Barry took control of their daily lives, including controlling Angelina’s wages when she got a lower-paid job, giving her insufficient money, criticising and belittling her and demanding sex as a condition of sponsoring her visa. When Angelina was at work, Barry rang and texted her constantly. He isolated Angelina from her close family members, required her to speak English rather than her first language, and once wielded a knife and demanded she end a phone call to her family so she could cook dinner.
Barry held Angelina’s immigration documents, and threatened to withdraw his sponsorship of her visa if she didn’t meet his demands.
Key features of the offence are now briefly outlined.
The offence
The statute
The offence is created by s 54D of the Crimes Act 1900 (NSW) (‘Crimes Act’). It is part of a new in pt 3 div 6A of the Crimes Act, ‘Offences against the person’.[6]
The elements
Some aspects of individual elements of the offence are now addressed and structured around the seven elements identified by the Judicial Commission of New South Wales in the Criminal Trial Courts Bench Book:[7]
- The accused was an adult: ss 54D(1)(a) and 54C:
- defined to mean ‘an individual who is 18 years of age or older’: s 54C; and
- there is no requirement that a complainant be over 18 years old.
- The accused and complainant either were, or had been, intimate partners: ss 54D(1)(b) and 54C. The term ‘intimate partner’ of a person is defined to mean:
- a current or former spouse or de facto partner (noting that ‘de facto partner’ is defined in s 21C of the Interpretation Act 1987 (NSW)); or
- a person who has, or had, an intimate personal relationship with the first person, whether or not it was an intimate sexual relationship: s 54C.
- The accused engaged in a course of conduct against the complainant: ss 54D(1)(a) and 54G:
- A ‘course of conduct’ is defined to mean engaging in behaviour repeatedly and/or continuously: s 54G(1).
- To constitute a course of conduct, the behaviour does not have to be engaged in as an unbroken series of incidents or in immediate succession: s 54G(2).
- The course of conduct consisted of abusive behaviour: ss 54D(1)(a) and s 54F.
- In relation to element 4 specifically:
- ‘Abusive behaviour’ is defined to mean behaviour that consists of, or involves, violence or threats against, or intimidation of, a person, or coercion or control of the person against whom the behaviour is directed: s 54F(1).
- A list of non-exhaustive types of behaviours that may constitute abusive behaviour if engaged in, or threatened to be engaged in, is set out in s 54F(2). The broad meaning of abusive behaviours allows for recognition and inclusion of the unique experiences of individuals and communities.
- For First Nations women, abusive behaviours can include threats to have children removed due to reports of abuse or negligence, mocking of cultural and spiritual practices and not being allowed to visit Country.[8]
- For LGBTIQ+ people, abusive behaviours can include pressure to conform to gender norms, threatening to ‘out’ a person’s gender, sexuality or HIV status, withholding transition-related hormones and exerting control by telling a person they won’t be believed because of their gender or sexuality.[9]
- For people with disability, abusive behaviours can include withholding medication or mobility equipment and making unilateral decisions about care.[10]
Examples:
(b) In relation to elements 3 and 4 taken together:
- Whether the course of conduct consists of abusive behaviour ‘must be assessed by considering the totality of the behaviours’: s 54D(2)(b).
- The prosecution must allege the nature and description of the behaviours and the period of time over which the course of conduct occurred: s 54H(1)(b).
- The course of conduct may, but need not, consist of more than one type of abusive behaviour. The prosecution case does not fail if multiple types of abusive behaviours are alleged and the tribunal of fact is not satisfied that all of those types are established (provided that at least one type is established).
- If the conduct relied on as an ‘abusive behaviour’ could also be charged separately as a discrete offence, its individual elements do not have to be proven for the purpose of the s 54D offence; for example, where stalking is alleged as one of the abusive behaviours, the prosecution need not prove an intent to cause physical or mental harm that would otherwise be required to prove an offence pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘Domestic and Personal Violence Act’).
An example: Angelina’s experience
If Barry was charged with a s 54D offence, the course of conduct of abusive behaviour could be said to consist of:
- economically abusive behaviour;
- sexually abusive behaviour;
- behaviour that shamed, isolated or monitored Angelina; and
- behaviour that unreasonably regulated Angelina’s day-to-day activities.
The particulars of each phone call to Angelina’s workplace and each other act such as the date on which Barry hid Angelina’s car keys would not need to be alleged. The prosecution would need to allege the nature and description of the behaviours: s 54H(1)(a).
- The accused intended the course of conduct to coerce or control the complainant: s 54D(1)(c):
- The terms ‘coerce’ and ‘control’ are not defined, and the terms are to be given their ordinary meaning.
- The requisite intention is intended to relate to the course of conduct, not to specific abusive behaviours: s 54D(1)(c).[11]
- A reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact was in fact caused: (a) fear that violence would be used against the complainant or another person; or (b) a serious adverse impact on the capacity of the complainant to engage in some or all of the complainant’s ordinary day-to-day activities: s 54D(1)(d):
- The tribunal of fact is to apply ‘community standards’ when undertaking the s 54D(1)(d) assessment.[12] Community standards should be taken to be informed about the nature of coercive control, including that abusive behaviours are ’often tailored to the unique and dynamic circumstances of the particular relationship’.[13]
- While the ‘reasonable person’ test is an objective test, a tribunal of fact arguably may regard matters personal to the individuals involved as relevant to ‘all the circumstances’ in s 54D(1)(d), including the meaning of a particular behaviour to the complainant,[14] cultural practices, and mental and physical health considerations.
- However, even where cultural practices, tradition or health factors may provide insight into the course of conduct, where the likely outcome would be fear or a serious adverse impact on the complainant’s capacity to engage in day-to-day activities (as assessed by a reasonable person using community standards, rather than a reasonable person in the position of the accused), this element may be satisfied.
- When Matthew met Ben, their relationship quickly became intimate, but they kept it secret because Ben didn’t want to come out.
- Ben’s behaviour quickly became abusive. He isolated Matthew physically and socially, he repeatedly insulted him, and he threatened to tell Matthew’s family he was crazy. Ben used the secrecy of their relationship to validate periods when he would reject or isolate Matthew.
- Ben also became physically violent: hitting, pushing or throwing things at Matthew.
- When Matthew told someone in his community about the abuse, he didn’t feel supported or taken seriously.
An example: Matthew’s experience :[15]
A reasonable person may consider that Ben’s behaviour towards Matthew would be likely, in all the circumstances, to cause Matthew to fear that violence would be used against him and that it was likely to cause a serious adverse impact on Matthew’s capacity to engage in some, or all, of his ordinary day-to-day activities.
- If the evidence raises the defence in s 54E, the course of conduct was not reasonable in all the circumstances: s 54E:
- It is a defence if the course of conduct was reasonable in all the circumstances. Where evidence capable of raising an issue as to whether the course of conduct is reasonable in all the circumstances is adduced, the prosecution must prove otherwise beyond reasonable doubt: s 54E(2).
- The statutory defence will be addressed further in part 2. In the meantime, if the evidence suggests a reasonable explanation for the alleged abusive behaviour, it may be that the evidence is not capable of proving the elements of offence (eg because elements 3 and 4 are not established).
Additional features of the offence
The following features of the offence are noteworthy.
First, consistent with the terms of s 54D(1)(a), the offence is a ‘course of conduct offence that covers patterns of abusive behaviour’ (emphasis added).[16] The abusive behaviours must fall within the definition in s 54F(1), but do not have to be unlawful or constitute underlying offences. [17]
Second, as a table 1 offence, the coercive control offence is an indictable offence that is to be dealt with summarily unless the accused or the prosecutor elects otherwise.[18]
Third, the offence is a ‘domestic violence offence’: s 11 of the Domestic and Personal Violence Act. The consequences include that a complainant’s evidence-in-chief may be given as a recorded statement, a complainant may give evidence by alternative means and with a support person present, certain warnings may be required about an absence of or a delay in complaint, and fear of the commission of a s 54D offence on reasonable grounds may ground an application for an apprehended domestic violence order.[19]
Fourth, the course of conduct that consists of abusive behaviour includes both behaviour in New South Wales and behaviour in New South Wales and another jurisdiction: s 54G(3).
Fifth, when dealt with in the Local Court of New South Wales, the jurisdictional limit of two years will apply, unless an offender is being sentenced for multiple offences, in which case the Local Court may not impose an aggregate sentence that exceeds five years.[20] In the District Court of New South Wales, the maximum penalty is seven years imprisonment: s 54D.
Charge selection
Alleged offending may give rise to a choice between different charges.
The charges selected should adequately and appropriately address the criminality alleged and enable a matter to be dealt with fairly and expeditiously.[21]
In a relationship characterised by coercive control, there will often be discrete acts that could be prosecuted as specific offences (eg offences of physical and/or sexual violence). Where those offences have a higher maximum penalty than seven years, it may be appropriate that they proceed as primary charges in order to adequately reflect the alleged criminality. The coercive control offence may also be charged, for instance, where there is a pervasive quality to the abusive behaviours.[22]
In proceedings for the s 54D offence, the common law principle of double jeopardy applies and is relevant to charge selection and/or particularisation.
Some illustrative examples of possible approaches to charging follow, noting that each case will depend on its own facts.
Lauren’s case
Example 1
- Primary specific charges against Alex:
- Sexual intercourse without consent, contrary to s 61I;
- Intentionally causing grievous bodily harm, contrary to s 33(1)(b).
Course of conduct of abusive behaviour towards intimate partner, contrary to s 54D – covering the same period during which the specific offences are alleged to have occurred, particularised to include sexual abuse and physical abuse.
Example 2
- Primary specific charges against Alex:
- As above: ss 61I and 33(1)(b) charges.
- Additional primary charge against Alex:
- Course of conduct of abusive behaviour towards intimate partner, contrary to s 54D – covering a different period to when the specific offences are alleged to have occurred, particularised to include sexual intercourse without consent and the intentional infliction of grievous bodily harm and to include other abusive behaviours such as economic abuse, monitoring and tracking, control and regulation of day-to-day activities, and behaviours that shamed, degraded and humiliated Lauren: s 54F.
Provided that both the prosecution and defence are alert to potential issues on sentence (such as issues identified in R v De Simoni (1981) 147 CLR 383), the various options for charge selection are likely to be useful for plea negotiations in appropriate cases. For example, the defence could advocate for specific charges to be terminated on the basis that the details of the relevant offending would be included as part of the particularised course of conduct of abusive behaviour for a coercive control offence to which an accused person would plead guilty instead.
Bail
Part 3 Division 1A of the Bail Act 2013 (NSW) (‘Bail Act’) concerns ‘show cause’ requirements. If an offence is a ‘show cause’ offence (as set out in s 16B), an accused person must show cause why their detention is not justified: s 16A(1).
Section 18 of the Bail Act sets out an exclusive list of matters to be considered by a bail authority when assessing bail concerns. If bail concerns constitute an unacceptable risk (s 19(2)) that an accused person will fail to appear, commit a serious offence, endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence, bail must be refused. The s 18 factors include, among others, the nature and seriousness of the offence and an accused person’s background, criminal history, history of violence and compliance with court orders.
On 1 July 2024 amendments to the Bail Act and the Surveillance Devices Act 2007 (NSW) concerning domestic violence partially commenced.[23]
The amendments to the Bail Act include:
- inserting the coercive control offence as an offence to which the ‘show cause’ requirement applies;
- requiring a bail authority, when assessing bail concerns, to consider:
- behaviour of an accused that may constitute domestic abuse;[24] and
- in relation to a domestic violence offence against an intimate partner, the views of the victim or any family member of a victim to the extent relevant, to a concern that the accused person could endanger the safety of victims, individuals or the community if released;
The amendments to the Bail Act extend to offences committed, alleged to have been committed or charged before 1 July 2024.
Conclusion
There will be three ministerial reviews of pt 3 div 6A of the Crimes Act (the first to occur as soon as possible after July 2026).
The reviews will include (s 54J(2)):
- consideration of the maximum penalty;
- whether the mental element should include recklessness;
- whether pt 3 div 6A should apply to relationships other than current and former intimate partner relationships (eg familial relationships, such as parent and child, in relation to elder abuse); and
- the impact of the offence on Aboriginal, culturally and linguistically diverse, and LGBTIQ+ people and whether victims are being misidentified as perpetrators.
The new offence involves a considerable shift, from incident-based domestic violence to patterns of domestic abuse that don’t necessarily involve either physical or sexual violence, but which can nonetheless be devastating in their impact. The opportunity to provide feedback and the results of the reviews will be keenly awaited by all stakeholders, not least because of the significance of the reforms in light of a strong evidence base for coercive control being a ‘proven precursor – a red flag indicator – to domestic violence deaths’.[25]
ENDNOTES
[1] New South Wales, Second Reading Speech, Legislative Assembly, 19 October 2022, 9043.
[2] LJ Warren, ‘The invisible cage: Psychology’s role in the criminalisation of coercive control’ (2021) 43(2) InPsych, citing Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press 2007).
[3] New South Wales (n 2) 9048; A County Council v LW [2020] EWCOP 50 [22].
[4] Adapted from Wirringa Baiya Aboriginal Women’s Legal Centre, Submission to the Joint Select Committee on Coercive Control, 19 February 2021 5–6 <Submission - 142.pdf (nsw.gov.au)>; used with permission from Wirringa Baiya Aboriginal Women’s Legal Centre.
[5] Adapted from Australasian Institute of Judicial Administration Inc (’AIJA’), National Domestic and Family Violence Bench Book <Victim experiences - National Domestic and Family Violence Bench Book (aija.org.au)> used with permission from AIJA.
[6] Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) s 2, sch 1.
[7] Judicial Commission of New South Wales, Criminal Trial Courts Bench Book: Abusive behaviour towards intimate partners, <https://www.judcom.nsw.gov.au/publications/benchbks/criminal/abusive_behaviour_towards_intimate_partners.html>.
[8] Wirringa Baiya Aboriginal Women’s Legal Centre (n 5) 3–4 .
[9] E Reeves, J McGowan and B Scott, ‘It was dangerous, corrosive and cruel but not illegal: legal help-seeking behaviours amongst LGBTQI+ domestic and family violence victim-survivors experiencing coercive control in Australia’ (2023) Journal of Family Violence 2; ACON Submission to the Joint Select Committee on Coercive Control, January 2021 6 <https://www.parliament.nsw.gov.au/ladocs/submissions/70468/Submission%20-%2081.pdf>.
[10] AIJA, National Domestic and Family Violence Bench Book: People with disability and impairment <;.
[11] New South Wales (n 2) 9049.
[12] Judicial Commission of New South Wales (n 8).
[13] New South Wales (n 2) 9048.
[14] Commonwealth, National Principles to Address Coercive Control in Family and Domestic Violence (Report, 2023) 9.
[15] Matthew’s experience is used with his permission through the New South Wales Department of Communities and Justice <;.
[16] New South Wales (n 2) 9050.
[17] Cf Chiro v The Queen (2017) 260 CLR 425: at 437, in relation to traditionally understood course of conduct offences. Given the similarities between s 54D and the s 66EA offence, the s 66EA jurisprudence may inform an understanding of the new offence. Cf MK v R; RB v R (2023) 112 NSWLR 96, where the Court of Criminal Appeal rejected the characterisation of the s 66EA offence in R v RB [2022] NSWCCA 142 as a ‘course of conduct’ offence, with reference to KBT v The Queen (1997) 191 CLR 417: at [22], [37] and [72].
[18] Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) sch 4; Criminal Procedure Act 1986 (NSW) (’CPA’) sch 1 table 1.
[19] CPA ss 289F,289V,306ZQ and 306ZR; Crimes (Domestic and Personal Violence) Act (2007) NSW s 16(1).
[20] CPA s 267(2); Crimes (Sentencing Procedure) Act 1999 (NSW) s 53B.
21 Office of the Director of Public Prosecutions, Prosecution Guidelines, ch 3.2 <;.
[22] Episode 3: Hayley Dean and Madeleine Avenell SC on ‘Coercive Control’, Legal Aid NSW Podcast (Legal Aid NSW, 6 June 2024) <https:legalaidnsw.podbean.com/e/coercive-control-episode-3/>.
[23] Bail and Other Legislation Amendment (Domestic Violence) Act 2024 (NSW).
[24] Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 6A.
[25] New South Wales (n 2) 9046, 9043; National Principles (n 15) 16.