Australia
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
This report presents a comprehensive review of legal responses to Family Violence in Australia. The commissions received many submissions. Chapter 12 discussed penalties and sentencing for breach of protection orders. The report notes that: ‘The overwhelming majority of stakeholders that addressed this issue were in favour of sanctions that could help to change the behaviour of those who commit violence. Therefore, there was support for ‘perpetrator programs’ such as violence and drug and alcohol rehabilitation programs; probation with special conditions, such as attending ‘perpetrators’ courses or counselling’; men’s behaviour programs; psychiatric assessment and treatment; anger management programs; and educational programs on family violence with ‘therapeutic interventions’’ (at [12.172].) Other options raised (as an alternative to imprisonment) included community service orders (provided the work associated with the penalty is ‘meaningful, constructive and rehabilitative’) (at [12.173])
The underlying issue in Chapters 13 and 14 is the way in which the criminal law accounts for the nature and dynamics of family violence. Criminal laws are traditionally perceived as ‘incident-based’, in that they are focused upon discrete acts forming the basis of individual offences. As identified in Chapter 5, family violence is characterised by patterns of controlling, coercive or dominating behaviour and may include both physical and non-physical violence [13.2].
Hidderley, Laura, Samuel Jeffs and Lauren Banning, The impact of domestic violence as an aggravating factor on sentencing outcomes: Research brief No. 1, May 2021, Queensland Sentencing Advisory Council.
This research brief explores whether there is a difference in sentencing outcomes for cases involving charges of common assault or assault occasioning bodily harm (AOBH) sentenced as domestic violence offences compared to non-domestic violence offences in Queensland. It concludes that “courts are treating domestic violence offences as more serious offending, warranting the greater use of custodial penalties and longer custodial sentences. This suggests that the sentencing reforms introduced in 2016 may be having their desired impact on sentencing outcomes. However, further research is needed to determine if this is due to the introduction of the new aggravating factor under section 9(10A) of the PSA, or reflects court sentencing practices prior to the introduction of these reforms when the separate identification and recording of offences as domestic violence offences for reporting purposes was not possible.”
Sentencing Advisory Council (Tas), Sentencing of Adult Family Violence Offenders: Final report No.5 (2015).
This Report provides advice on the sentencing of adult family violence offenders in Tasmania and includes consideration of the range and adequacy of sentencing options and support programs available and the role of specialist family violence lists or courts in dealing with family violence matters. Included in the terms of reference: (2) Sentencing practices in relation to family violence offences across Tasmania; (3) Sentencing standards for family violence offences in comparison to similar offences outside the family violence context; (4) the range and adequacy of sentencing options and support programs available to the courts when sentencing family violence matters
3.2 SENTENCING PRINCIPLES AND SENTENCING ORDERS
On a finding or plea of guilt the sentencing officer’s task is informed by the aims and purposes of sentencing. In Tasmania, these aims (replicating recognised common law objectives) are set out in s 3 of the Sentencing Act 1997and include punishment, deterrence, prevention, denunciation and rehabilitation. The decision on sentence is also shaped by a number of other general common law sentencing principles including the central principle of proportionality, which requires that the punishment imposed be commensurate with the blameworthiness of the offender.
When sentencing for a family violence offence an additional consideration is the fact that the legislation suggests that family violence offences need to be regarded seriously and that victim safety may be a more significant factor in the sentencing exercise. The objects clause of the FVA states that the ‘safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations.’
4.1 COMPARATIVE SENTENCING STANDARDS
This section of the Report examines sentencing standards by comparing sentences imposed where an offence is committed in the context of family violence with those imposed for the same offence committed in a non-family violence context. The most common of these (and the only one for which sufficient data exists to enable a meaningful comparison) is the offence of assault contrary to the Police Offences Act, 1935.
5.2 DOMESTIC PROGRAMS
All Australian States and Territories have rehabilitation programs as part of their response to family violence but not all have made legislative provision for referral to such programs. Some of the key differences in the programs are: when a treatment order may be made; whether a counselling order is mandatory, voluntary, or made in connection with sentencing; the type of treatment available; and the effect of a counselling order.
Sentencing Advisory Council (Vic), Sentencing Practices for Breach of Family violence Intervention Orders: Final Report (2009).
This is a report compiled by the Sentencing Advisory Council from Victoria on Intervention Orders in Victoria: their usage, purpose, efficacy and, most importantly, the penalties awarded for their breach. The Council compiled the report by reviewing relevant literature on family data, analysing data on sentencing and conducting new research by consulting those involved in the sentencing process (magistrates, court staff, Victoria Police, community legal centre representatives, family violence service providers, defence lawyers, workers from men’s family violence programs and a family violence victims’ support group). The report found:
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The sanctions imposed during sentencing for breach of a family violence order were considered by most stakeholders to be far too lenient (viii)
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Fines are inappropriate sentences for breach of intervention orders (viii) as they can punish the victim as well as the offender (ix)
‘Some sentences which are intended to punish the offender may fail to achieve that purpose. For example, the most common sentencing disposition for breaching an intervention order is a fine. The purpose of a fine is generally said to be to punish the offender and act as a deterrent to future offending by the offender and others. However, the dynamics of family violence mean that fines can punish the victim(s) as much or more than the offender. Payment of the fine by the offender may affect his ability to provide financial support to the victim and her family. The offender may even coerce the victim into paying the fine.’ (at [6.12]).
Sentencing Advisory Council (Vic), Sentencing for Contravention of Family Violence Intervention Orders and Safety Notices: Second Monitoring Report (2015).
This report is a continuation of previous monitoring work, examining sentencing patterns over yearly periods from 2009 and 2015 for offences involving contravention of a family violence intervention order (FVIO) or a family violence safety notice (FVSN) made under the Family Violence Protection Act 2008 (Vic). In particular, this report examines sentencing for the offences of:
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contravention of an FVIO;
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contravention of an FVSN;
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contravention of an FVIO intending to cause harm or fear for safety;
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contravention of an FVSN intending to cause harm or fear for safety; and
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persistent contravention of notices and orders.
In terms of sentencing for FVIO and FVSN contravention, there was an increase in the use of imprisonment and community sentences (including community correction orders (CCOs), following the phased abolition of suspended sentences.
Sentencing Advisory Council (Vic), Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (2017).
This report examines whether ‘swift, certain and fair’ (‘SCF’) approaches towards sentencing of family violence offenders are desirable in Victoria (p ix). SCF approaches include:
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targeting offenders serving their sentence in the community;
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monitoring compliance;
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responding to contraventions within 72 hours; and
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responding to contraventions with fixed (usually custodial) sentences, with lengths of between a few hours to a month (p x).
The report concludes that SCF approaches towards sentencing of family violence offenders are not desirable in Victoria because, for example:
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there is an absence of evidence for the effectiveness of SCF approaches to family violence offences (see [3.15]-[3.24]);
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the potential risks to victims (see [3.51]-[3.61]);
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the potential for disproportionate impact on particular groups, especially Aboriginal and Torres Strait Islander people (see [3.117]-[3.129]); and
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overwhelming stakeholder opposition (p xi).
The report recommends instead that judicial officers make increased use of judicial monitoring conditions in community correction orders (CCO) (Recommendation 5; see [4.56]). The report notes that the Law Institute of Victoria, in its submission, identified judicial monitoring as one of the ‘most promising approaches in reducing family violence offending’ (see [4.27]). Data from the Victorian Magistrates Court reveals that a judicial monitoring condition was attached in 14% of cases (510 of 3,560) where a family violence offender was sentenced to a CCO during the 2015-16 financial year ([4.34]). It is argued that judicial monitoring hearings, in front of the same judicial officer, help foster a sense of accountability in offenders ([4.104])
International
This study seeks to document how these restorative approaches are being applied to intimate partner violence across the USA. It draws on a national survey of programs along with five in-depth cases studies based on follow-up site visits. The survey results suggest a wide variation in how restorative approaches are being used, some overarching themes emerge: programs that responded prioritize survivor agency and safety, focus on active accountability for those who have caused harm, and emphasize voluntary participation.
Sentencing laws vary between states and territories (see Table 1 below).
Where an offence is committed in the context of domestic and family violence and the offence breaches an existing protection order, this is usually considered an aggravating feature for sentencing purposes (it is not a mitigating factor) (see Table 2 below).
In all Australian jurisdictions it is possible for judicial officers to recognise the dynamics of family violence when sentencing offenders who have committed offences in the context of domestic and family violence.
Sentencing provides an important opportunity for judicial officers to clearly denounce domestic and family violence, to emphasise the accountability of the offender and to recognise the harm done to the victim.
It is important to consider community safety and protection in sentencing for offences that take place in the context of domestic and family violence. The safety of the victim may be a relevant consideration in the selection of an appropriate penalty.
Rehabilitation of the offender may be an appropriate aim in sentencing some offenders who have committed offences in the context of domestic and family violence. In such cases there may be benefits in utilising sentencing approaches that require the perpetrator to attend a perpetrator intervention program.
Courts have recognised that the need to deter future domestic and family violence is an important aim of sentencing for offences committed in the context of domestic and family violence.
Table 1: Approaches to sentencing where offences committed in the context domestic and family violence.
Generally | The Queen v Kilic (2016) 259 CLR 256 at [21] Munda v Western Australia (2013) 249 CLR 600 at [54]–[55] |
Australian Capital Territory | Section 34B Crimes (Sentencing) Act 2005 (ACT). See for example: R v Wyper [2017] ACTCA 59 |
New South Wales | ss 4A, 4B, see also 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 (NSW) Judicial Commission of NSW, Sentencing Bench Book (2021) Thorp v R [2022] NSWCCA 180 (31 August 2022) Diaz v The Queen [2018] NSWCCA 33 (14 March 2018) |
Northern Territory | See for example: Emitja v The Queen [2016] NTCCA 4 |
Queensland | ss 9(10A) and 12A Penalties and Sentences Act 1992 (Qld) Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2021), See for examples: R v Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 |
South Australia | Sentencing Act 2017 (SA) See for example: Warne v The Queen [2020] SASCFC 124 (21 December 2020) |
Tasmania | See for example Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018) See also: ss 13 and 13A Family Violence Act 2004 (Tas) |
Victoria | Judicial College of Victoria, Victorian Sentencing Manual (2022) Judicial College of Victoria, Family Violence Bench Book (2014) especially 4.2 ss124E and 124F Sentencing Act 1995 (WA) regarding sentencing serial family violence offenders. See Legal Aid Western Australia, Family violence offences & Serial Family Violence Offenders, 2021 |
Western Australia | Sections 124E, 12F Sentencing Act 1995 (WA) regarding sentencing serial family violence offenders. See Legal Aid Western Australia, Family violence offences & Serial Family Violence Offenders. Department of Attorney General (WA), Equality Before the Law: Bench Book (2021) See for example: Bropho v Hall [2015] WASC 50 (9 February 2015) |
See also 9.3.1 Sentencing Considerations- Breaches of protection Orders:
Sentencing laws vary between states and territories (see Table 1 below).
Where an offence is committed in the context of domestic and family violence and the offence breaches an existing protection order, this is usually considered an aggravating feature for sentencing purposes (it is not a mitigating factor) (see Table 2 below).
In all Australian jurisdictions it is possible for judicial officers to recognise the dynamics of family violence when sentencing offenders who have committed offences in the context of domestic and family violence.
Sentencing provides an important opportunity for judicial officers to clearly denounce domestic and family violence, to emphasise the accountability of the offender and to recognise the harm done to the victim.
It is important to consider community safety and protection in sentencing for offences that take place in the context of domestic and family violence. The safety of the victim may be a relevant consideration in the selection of an appropriate penalty.
Rehabilitation of the offender may be an appropriate aim in sentencing some offenders who have committed offences in the context of domestic and family violence. In such cases there may be benefits in utilising sentencing approaches that require the perpetrator to attend a perpetrator intervention program.
Courts have recognised that the need to deter future domestic and family violence is an important aim of sentencing for offences committed in the context of domestic and family violence.
Table 1: Approaches to sentencing where offences committed in the context domestic and family violence.
Generally | The Queen v Kilic (2016) 259 CLR 256 at [21] Munda v Western Australia (2013) 249 CLR 600 at [54]–[55] |
Australian Capital Territory | Section 34B Crimes (Sentencing) Act 2005 (ACT). See for example: R v Wyper [2017] ACTCA 59 |
New South Wales | ss 4A, 4B, see also 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 (NSW) Judicial Commission of NSW, Sentencing Bench Book (2021) Thorp v R [2022] NSWCCA 180 (31 August 2022) Diaz v The Queen [2018] NSWCCA 33 (14 March 2018) |
Northern Territory | See for example: Emitja v The Queen [2016] NTCCA 4 |
Queensland | ss 9(10A) and 12A Penalties and Sentences Act 1992 (Qld) Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2021), See for examples: R v Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 |
South Australia | Sentencing Act 2017 (SA) See for example: Warne v The Queen [2020] SASCFC 124 (21 December 2020) |
Tasmania | See for example Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018) See also: ss 13 and 13A Family Violence Act 2004 (Tas) |
Victoria | Judicial College of Victoria, Victorian Sentencing Manual (2022) Judicial College of Victoria, Family Violence Bench Book (2014) especially 4.2 ss124E and 124F Sentencing Act 1995 (WA) regarding sentencing serial family violence offenders. See Legal Aid Western Australia, Family violence offences & Serial Family Violence Offenders, 2021 |
Western Australia | Sections 124E, 12F Sentencing Act 1995 (WA) regarding sentencing serial family violence offenders. See Legal Aid Western Australia, Family violence offences & Serial Family Violence Offenders. Department of Attorney General (WA), Equality Before the Law: Bench Book (2021) See for example: Bropho v Hall [2015] WASC 50 (9 February 2015) |
See also 9.3.1 Sentencing Considerations- Breaches of protection Orders: