Physical violence and harm

The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.

Click on the citation to be directed to a summary of the case in the Case Database.

  • R v Pikula [2015] ACTSC 380 (12 November 2015) – Australian Capital Territory Supreme Court
    Refshauge J at [1]: ‘There can be no doubt that one of the marks of a civilised society is that its members can be protected from violence in their lives. While there can, of course, be no guarantee of such protection, nevertheless, the community expects that appropriate steps will be taken to maximise such protection. This is especially true of the need for safety within the family’.
  • R v Peadon [2015] ACTSC 132 (14 May 2015) – Australian Capital Territory Supreme Court
    Burns J at [4]:‘these offences [were] family violence offences and as such must be treated very seriously by [the] Court. [The] community views with great abhorrence the infliction of violence by people in family relationships’.
  • R v Hamid [2006] NSWCCA 302 (20 September 2006) – New South Wales Court of Criminal Appeal
    Johnson J at [77]: ‘An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pp 6–7’.
  • R v Edigarov [2001] NSWCCA 436 (5 October 2001) – New South Wales Court of Criminal Appeal
    Wood CJ at [41]: As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable’.
  • R v Dunn [2004] NSWCCA 41 (21 December 2004) – New South Wales Court of Criminal Appeal
    Adams J at [47]: ‘Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted’.
  • Her Majesty's Attorney-General v O [2004] TASSC 53 (9 June 2004) – Supreme Court of Tasmania

    Quoting the Canadian decision of R v Brown (1992) 73 CCC (3d) 242, 249 (as cited in Parker v R [1994] TASSC 94):

    ‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.’
  • DPP v Smeaton [2007] VSCA 256 (15 November 2007) – Victorian Court of Appeal
    Dodds-Streeton JA at [21]: ‘Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil’.
  • Pasinis v The Queen [2014] VSCA 97 (22 May 2014) – Victorian Court of Appeal

    Kyrou AJA at [53]-[54]: ‘Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.’

    ‘The effects of family violence are now well documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case, it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable. This phenomenon was reflected in the behaviour of D, which is described at [5] and [8] to [10] above. Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and longlasting psychological trauma. As in the present case, the physical effects of the violence and its erosion of the victim’s confidence can also affect their ability to participate in paid work and have other serious financial effects’.
  • Silva v The State of Western Australia [2013] WASCA 278 (4 December 2013) – Supreme Court of Western Australia (Court of Appeal)

    Buss JA with whom Mazza JA agreed (quoting the sentencing judge):

    ‘The law is clear that disputes between partners, no matter how emotionally hurtful, must be resolved peacefully. People must understand that marriage is not a licence to treat a spouse as a chattel and violence in the course of a marriage breakdown will be met with deterrent sentences’ ([42]).