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.
Lusted v MRB [2013] TASMC 9 (19 February 2013) – Magistrates’ Court of Tasmania
Magistrate RW Pearce at [68]: ‘Family violence is to be abhorred. It is a significant social problem, of concern to the community and the justice system. The parliament saw fit to enact legislation, the Family Violence Act 2004, expressly to “provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence”. The nature of family violence is that it is difficult to detect and prosecute. It is frequently the case that offences are committed in private and with little or no independent corroborative evidence. Moreover, family violence offences are often characterised by reluctance on the part of the victim to assist in the prosecution of offences. That is so for a range of factors including fear and a wish to preserve relationships, even dysfunctional ones, for the sake of loyalty, affection, companionship, economic and domestic support and in the perceived interest of children. Sometimes those motivations are misguided but persist nevertheless. As a consequence of such factors victims sometimes act in a way that seems to an outside observer to be incongruous and difficult to understand, including by failing to complain about, or hiding or lying about violence directed at them. Even if victims are willing to give evidence then the success of prosecutions depends principally on credibility of the uncorroborated account of the victim, a factor often taken advantage of by perpetrators and further adding to the reluctance of victims to complain’.
Bropho v Hall [2015] WASC 50 (9 February 2015) – Supreme Court of Western Australia
Mitchell J at [16]: ‘The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner’ (which was approved by this court in Gillespie v The State of Western Australia [2016] WASCA 216 [48]).
The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) – Supreme Court of Western Australia (Court of Appeal)
McLure P at [2]-[3]: ‘The sentencing judge said: ‘The decision to suspend [the sentence of imprisonment] or not is difficult but you are I think a person in whom I can grant suspension, and primarily because of your acceptance of responsibility in these unique circumstances in which there was a matrimonial breakdown, if you like, that you have reconciled, that your partner wants you back, that there is a child of your union and that you are a person who can get employment readily within the community and thereby if the system can rehabilitate you to assume full responsibility for your family through looking after them financially and by getting back into work, then rehabilitation perhaps outweighs the requirement for you to serve the term (ts 20)’.
‘The circumstances to which the sentencing judge referred are neither unique nor mitigatory. The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence. The otherwise appropriate penalty should not be reduced because there is a return to the status quo that existed prior to the breakdown of the relationship which precipitated the violence. It is also circular to rely on the return to the relationship status quo as the route to rehabilitation. Moreover, the emphasis on the domestic context marginalises the actual and threatened violence inflicted by the respondent on C’.
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.
Lusted v MRB [2013] TASMC 9 (19 February 2013) – Magistrates’ Court of Tasmania
Magistrate RW Pearce at [68]: ‘Family violence is to be abhorred. It is a significant social problem, of concern to the community and the justice system. The parliament saw fit to enact legislation, the Family Violence Act 2004, expressly to “provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence”. The nature of family violence is that it is difficult to detect and prosecute. It is frequently the case that offences are committed in private and with little or no independent corroborative evidence. Moreover, family violence offences are often characterised by reluctance on the part of the victim to assist in the prosecution of offences. That is so for a range of factors including fear and a wish to preserve relationships, even dysfunctional ones, for the sake of loyalty, affection, companionship, economic and domestic support and in the perceived interest of children. Sometimes those motivations are misguided but persist nevertheless. As a consequence of such factors victims sometimes act in a way that seems to an outside observer to be incongruous and difficult to understand, including by failing to complain about, or hiding or lying about violence directed at them. Even if victims are willing to give evidence then the success of prosecutions depends principally on credibility of the uncorroborated account of the victim, a factor often taken advantage of by perpetrators and further adding to the reluctance of victims to complain’.
Bropho v Hall [2015] WASC 50 (9 February 2015) – Supreme Court of Western Australia
Mitchell J at [16]: ‘The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner’ (which was approved by this court in Gillespie v The State of Western Australia [2016] WASCA 216 [48]).
The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) – Supreme Court of Western Australia (Court of Appeal)
McLure P at [2]-[3]: ‘The sentencing judge said: ‘The decision to suspend [the sentence of imprisonment] or not is difficult but you are I think a person in whom I can grant suspension, and primarily because of your acceptance of responsibility in these unique circumstances in which there was a matrimonial breakdown, if you like, that you have reconciled, that your partner wants you back, that there is a child of your union and that you are a person who can get employment readily within the community and thereby if the system can rehabilitate you to assume full responsibility for your family through looking after them financially and by getting back into work, then rehabilitation perhaps outweighs the requirement for you to serve the term (ts 20)’.
‘The circumstances to which the sentencing judge referred are neither unique nor mitigatory. The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence. The otherwise appropriate penalty should not be reduced because there is a return to the status quo that existed prior to the breakdown of the relationship which precipitated the violence. It is also circular to rely on the return to the relationship status quo as the route to rehabilitation. Moreover, the emphasis on the domestic context marginalises the actual and threatened violence inflicted by the respondent on C’.