Sentencing

NSW

  • Judicial Commission of NSW, Sentencing Bench Book (2018).

    [63-510] ‘Sentencing approach to domestic violence’ provides that, ‘[t]he courts have recognised the special dynamics of domestic violence. A victim of a domestic violence offence is personally targeted by the offender and the offence is usually part of a larger picture of physical and mental violence in which the offender exercises power and control over the victim: R v Burton [2008] NSWCCA 128 at [97].

    The offender often has a genuine, albeit irrational, belief of being wronged by the victim and also believes the violence is justified: Xue v R [2017] NSWCCA 137 at [53]; Ahmu v R; DPP v Ahmu [2014] NSWCCA 312 at [83]. But a resort to violence is not justified even if the belief turns out to be correct: Xue v R at [53]; see also Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86].

    There is a continuing threat to the victim’s safety even where the victim becomes estranged from the offender: R v Dunn (2004) 144 A Crim R 180 at [47]. The victim may forgive the offender against their own interests: R v Glen [1994] NSWCCA 1 (19 December 1994); R v Rowe (1996) 89 A Crim R 467; R v Burton at [105]. Sentencing courts must treat such forgiveness with caution and attribute weight to general and specific deterrence, denunciation and protection of the community: R v Hamid (2006) 164 A Crim R 179 at [86]; Simpson v R [2014] NSWCCA 23 at [35]; R v Eckermann [2013] NSWCCA 188 at [55]; Ahmu v R; DPP v Ahmu at [83]. The attitude of the victim cannot interfere with the exercise of the sentencing discretion: R v Palu (2002) 134 A Crim R 174 at [37]. See DPP (NSW) v Vallelonga [2014] NSWLC 13 for an example of the application of the above principles’.

    [2-240] ‘To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)’ notes that ‘weight should be given by a court to general and specific deterrence for a range of offences’ including ‘violent offences: committed in a domestic context: Simpson v R [2014] NSWCCA 23 at [35]; Smith v R [2013] NSWCCA 209 at [69]; R v Hamid (2006) 164 A Crim R 179 at [68]; and premeditated violence, particularly leading to grievous bodily harm, in R v Najem [2008] NSWCCA 32 at [33]’.

QLD

  • Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2017).

    Part 19.12 of the bench book deals with sentencing for breach of a DV order, police protection notices and release conditions. The bench book details general statements of principle from the Court of Appeal.

    From R v Wood [1994] QCA 297: ‘Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them’ (p. 120).

    R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105: ‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity’ (p. 121). The bench book also lists principles from a number of District Court s 222 appeals.

Vic

  • Judicial College of Victoria, Victorian Sentencing Manual (2015).

    Part 7 Sentencing Purposes
    [7.5.3] Offences for which the courts have emphasised general deterrence includes:

    [7.5.4] Circumstances in which general deterrence has been emphasised includes:

    Part 9 Circumstances of the offence

    Under Part 9.15, the Sentencing Manual looks specifically at offences involving family violence. It notes a number of key points:

    • Courts have emphasised the need to condemn family violence: Robertson [2005] VSCA 190 [13] (Chernov JA); Earl [2008] VSCA 162 [23] (Nettle JA); Smith [2010] VSCA 192 [11] (Beach AJA); Hester [2007] VSCA 298 [19] (Chernov JA); Pasinis [2014] VSCA 97 [57] (Neave JA and Kyrou AJA).
    • Such offending will frequently involve breaches of trust and assaults on comparatively defenceless victims: DPP v Smeaton [2007] VSCA 256 [13] (Nettle JA); DPP v Muliaina [2005] VSCA 13 [21] (Chernov JA); Earl [2008] VSCA 162 [23] (Nettle JA).
    • Harm goes beyond physical injury.
    • ‘For these reasons, general deterrence looms large in sentencing for violent crimes in a family context. In Pasinis [2014] VSCA 97, Neave JA and Kyrou AJA at [57] said such offences warranted lengthy terms of imprisonment’.
    • Part 9.15.1 Contravention of intervention order as aggravating circumstance - ‘The breach of a family violence intervention order will exacerbate the objective seriousness of other offending: Marrah [2014] VSCA 119 [20]’.
    • Part 9.15.3 Sentencing contravention offences - ‘The frequency with which intervention orders are breached – and the potentially tragic consequences – warrants strong judicial condemnation of contravention offences’. ‘In Marrah [2014] VSCA 119, the gravity of a course of conduct including recklessly causing serious injury, rape and a threat to kill was aggravated by the fact the offender was subject to a family violence intervention order’.

    Part 29.3.14 Causing injury in a family violence context

    ‘General deterrence looms large in sentencing offenders for domestic violence, including offences causing injury. In Pasinis [2014] VSCA 97 [57] the Court of Appeal observed: General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm’.

    Part 31.3.3 Sexual offences in a family violence context

    ‘The existence of a prior relationship between the offender and the victim will not serve as a mitigating factor at sentence. Indeed, it may exacerbate the objective seriousness of the offender’s conduct’.

    ‘Where sexual violence is used to punish or humiliate the complainant, or to force them back into a relationship, the offending conduct is viewed as particularly grave’.

  • Judicial College of Victoria, Family Violence Bench Book (2014).

    Part 4.1.1 Contravention of a family violence order

    [4.1.1.3.1] Sentencing principles

    ‘The effective enforcement of intervention orders and the imposition of appropriate sentences for contraventions of such orders are crucial to ensuring that victims of threatened violence are actually protected […]Further: If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike. [Victorian Law Reform Commission, Review of Family Violence Laws: Report (February 2006), p372.]’. Breaches of intervention orders must be severely punished. See also [4.1.1.3.3 Ascertaining the circumstances of the offence and the impact on the victim; 4.1.1.3.5 Aggravating factors namely, involvement of children, timing of contravention, repeat contravention; 4.1.1.3.4 Considering the attitude of the victim – often given minimal weight. ‘This approach can demonstrate that the court is responsible for determining the appropriate sentence and an offender will not benefit from pressuring the victim into supporting a lenient sentence’].

    Part 4.2 Criminal offences in the context of family violence – sentencing purposes for family violence offences

    ‘General deterrence is of primary importance for offences committed in the context of family violence […]Courts have also acknowledged the need for sentencers to denounce offences occurring in the context of family violence’.

WA

  • Department of Attorney General (WA), Equality Before the Law: Bench Book (2009).

    Chapter 13 covers domestic and family violence.

    13.3.8: Your sentencing, decision(s) and/or written judgment or decision must be fair and non-discriminatory to any victim of family or domestic violence who is affected by or referred to in your sentencing, decision and/or written judgment or decision — and preferably should be considered to be fair and non-discriminatory by them.

    Points to consider:

    • if a witness is not personally capable of giving a victim impact statement for any reason, consider whether it is appropriate for someone else to do so on the victim’s behalf.
    • whether to quote from a victim impact statement in court.