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 UG [2020] ACTCA 8 (27 February 2020) – ACT Court of Appeal
"49. In relation to the application of a separate sentencing regime to family violence offences, s 34(2)(a) of the Sentencing Act expressly addresses the issue, but not in a way that assists the Crown. It provides:
(2) In deciding how an offender should be sentenced for an offence, a court must not reduce the severity of a sentence it would otherwise have imposed because– (a) the offence is a family violence offence; or …
50. There is no mention of increasing the sentence that a court would otherwise have imposed.
51. When sentencing a particular offender for a "family violence offence", the usual sentencing principles apply. This means that, when relevant to the particular case and subject to the De Simoni principle (R v De Simoni (1981) 147 CLR 383), the sentencing court will take into account matters that are frequently associated with "family violence offences". These matters include:
(a)
whether the offence forms part of a course of conduct (Sentencing Act s 33(1)(c));
(b)
whether and how a weapon was used;
(c)
whether the offence was associated with actual or threatened violence;
(d)
the impact on victims (Sentencing Act s 33(1)(f)); and
(e)
whether the offender was in a position of trust or authority vis-à-vis the victim (Sentencing Act s 33(1)(u)), which is usually–perhaps even "necessarily"–the case in relation to domestic violence offences: see R v Kilic [2016] HCA 48; 259 CLR 256 at [28].
However, such factors are not taken into account because the offence can be labelled a "family violence offence", but because they attach to the particular offending conduct."
Parker v Tasmania [2020] TASCCA 9 (12 June 2020) – Tasmanian Court of Criminal Appeal
At [28], Estcourt J stated:
"As I have said in the past, vulnerable women such as the complainant are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the courts."
Citing Price v Tasmania [2016] TASCCA 22, Director of Public Prosecutions v Karklins [2018] TASCCA 6, Gregson v Tasmania [2018] TASCCA 14 and Director of Public Prosecutions v Johnson [2020] TASCCA 4, Geason J stated at [41]:
"…this Court has on a number of occasions emphasised the importance of general deterrence in sentencing for offences involving the infliction of violence on the vulnerable. Too frequently this occurs in a domestic or relationship context. Such conduct requires a sentence that reflects the insidious nature of such offending, and the importance of protecting those vulnerable to such harm…"
Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020) – Tasmanian Court of Criminal Appeal
At [52]-[53], the Court stated:
"The dangers attached to choking have been well documented over many years, particularly in homicide cases. Judges sitting in criminal law have become familiar with evidence of pathologists that death in choking cases is usually as a result of pressure applied to the carotid arteries, thereby blocking the arterial blood supply to the brain… In recent years, criminal courts across Australia have come to understand that choking of female victims by male offenders is a prevalent and dangerous feature of violence perpetrated in domestic circumstances."
At [64], the Court noted that:
"The prevalence and devastating impacts of violence perpetrated against women and children in domestic circumstances are well recognised across Australia by the criminal courts and the wider community. Victims in these cases are vulnerable. The crimes are often committed within the confines of the family home in breach of the sanctity and safety of the home. Choking is a common and dangerous feature."
Degney v The Queen [2019] VSCA 183 (19 August 2019) – Victorian Court of Appeal
At [50], the Court stated:
‘…[T]hose considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of our community and will not hesitate to impose stern punishment upon wrongdoers. In 2014, this Court sent out what it hoped would be an unequivocal message to would-be perpetrators of domestic violence – that if they offended, they would be sentenced to lengthy terms of imprisonment. The sentence we are about to impose follows through on that message.’
At [52], the Court observed:
‘There has been an increasing community disquiet over violence of males towards their female partners (or ex-partners) and this is one reason why denunciation of this conduct must be given full expression in the sentence.’
DPP v Smith [2019] VSCA 266 (21 November 2019) – Victorian Court of Appeal
At [35], the Court stated:
‘…[T]hose considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of our community and will not hesitate to impose stern punishment upon wrongdoers. In 2014, this Court sent out what it hoped would be an unequivocal message to would-be perpetrators of domestic violence – that if they offended, they would be sentenced to lengthy terms of imprisonment. The sentence we are about to impose follows through on that message.’
Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019) – Tasmanian Court of Criminal Appeal
At [29], Estcourt J held:
‘Violent behaviour by men towards women in relationships must be condemned and discouraged. Vulnerable women, such as the complainant, are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the courts.’
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’.
R v June Oh Seo [2019] NSWSC 639 (31 May 2019) – New South Wales Supreme Court
Wilson J noted At [53]-
She was attacked by him in her own home, a home in which he had no right to be, Ms Choi having asked him to leave. Thus did what should have been a place of peace and safety become a place of great danger for Ms Choi.
At [82] –
‘Whilst there are men in the community, and it is mostly men, who view women as second class citizens who must bend to their will, when that attitude results in the commission of crime, and particularly violent crime, the courts will impose heavy punishment. Such conduct is never acceptable and it will be strongly repudiated by the courts.’
R v MCW [2018] QCA 241 (28 September 2018) – Queensland Court of Appeal
The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –
‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’
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’.
R v Davsanoglu [2019] VSC 332 (24 May 2019) – Victorian Supreme Court
Lasry J noted at [5] -
‘This is yet another case of a man inflicting his will on a woman by the use of fatal violence in her home. Whilst the circumstances of this case are unusual to a degree, in other respects, they are all too familiar. Violence by men against women remains of epidemic proportions, and it simply must be stemmed.’
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]).
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 UG [2020] ACTCA 8 (27 February 2020) – ACT Court of Appeal
"49. In relation to the application of a separate sentencing regime to family violence offences, s 34(2)(a) of the Sentencing Act expressly addresses the issue, but not in a way that assists the Crown. It provides:
(2) In deciding how an offender should be sentenced for an offence, a court must not reduce the severity of a sentence it would otherwise have imposed because– (a) the offence is a family violence offence; or …
50. There is no mention of increasing the sentence that a court would otherwise have imposed.
51. When sentencing a particular offender for a "family violence offence", the usual sentencing principles apply. This means that, when relevant to the particular case and subject to the De Simoni principle (R v De Simoni (1981) 147 CLR 383), the sentencing court will take into account matters that are frequently associated with "family violence offences". These matters include:
(a)
whether the offence forms part of a course of conduct (Sentencing Act s 33(1)(c));
(b)
whether and how a weapon was used;
(c)
whether the offence was associated with actual or threatened violence;
(d)
the impact on victims (Sentencing Act s 33(1)(f)); and
(e)
whether the offender was in a position of trust or authority vis-à-vis the victim (Sentencing Act s 33(1)(u)), which is usually–perhaps even "necessarily"–the case in relation to domestic violence offences: see R v Kilic [2016] HCA 48; 259 CLR 256 at [28].
However, such factors are not taken into account because the offence can be labelled a "family violence offence", but because they attach to the particular offending conduct."
Parker v Tasmania [2020] TASCCA 9 (12 June 2020) – Tasmanian Court of Criminal Appeal
At [28], Estcourt J stated:
"As I have said in the past, vulnerable women such as the complainant are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the courts."
Citing Price v Tasmania [2016] TASCCA 22, Director of Public Prosecutions v Karklins [2018] TASCCA 6, Gregson v Tasmania [2018] TASCCA 14 and Director of Public Prosecutions v Johnson [2020] TASCCA 4, Geason J stated at [41]:
"…this Court has on a number of occasions emphasised the importance of general deterrence in sentencing for offences involving the infliction of violence on the vulnerable. Too frequently this occurs in a domestic or relationship context. Such conduct requires a sentence that reflects the insidious nature of such offending, and the importance of protecting those vulnerable to such harm…"
Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020) – Tasmanian Court of Criminal Appeal
At [52]-[53], the Court stated:
"The dangers attached to choking have been well documented over many years, particularly in homicide cases. Judges sitting in criminal law have become familiar with evidence of pathologists that death in choking cases is usually as a result of pressure applied to the carotid arteries, thereby blocking the arterial blood supply to the brain… In recent years, criminal courts across Australia have come to understand that choking of female victims by male offenders is a prevalent and dangerous feature of violence perpetrated in domestic circumstances."
At [64], the Court noted that:
"The prevalence and devastating impacts of violence perpetrated against women and children in domestic circumstances are well recognised across Australia by the criminal courts and the wider community. Victims in these cases are vulnerable. The crimes are often committed within the confines of the family home in breach of the sanctity and safety of the home. Choking is a common and dangerous feature."
Degney v The Queen [2019] VSCA 183 (19 August 2019) – Victorian Court of Appeal
At [50], the Court stated:
‘…[T]hose considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of our community and will not hesitate to impose stern punishment upon wrongdoers. In 2014, this Court sent out what it hoped would be an unequivocal message to would-be perpetrators of domestic violence – that if they offended, they would be sentenced to lengthy terms of imprisonment. The sentence we are about to impose follows through on that message.’
At [52], the Court observed:
‘There has been an increasing community disquiet over violence of males towards their female partners (or ex-partners) and this is one reason why denunciation of this conduct must be given full expression in the sentence.’
DPP v Smith [2019] VSCA 266 (21 November 2019) – Victorian Court of Appeal
At [35], the Court stated:
‘…[T]hose considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of our community and will not hesitate to impose stern punishment upon wrongdoers. In 2014, this Court sent out what it hoped would be an unequivocal message to would-be perpetrators of domestic violence – that if they offended, they would be sentenced to lengthy terms of imprisonment. The sentence we are about to impose follows through on that message.’
Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019) – Tasmanian Court of Criminal Appeal
At [29], Estcourt J held:
‘Violent behaviour by men towards women in relationships must be condemned and discouraged. Vulnerable women, such as the complainant, are entitled to the protection of the law against brutal partners, and the community expectation is that such protection will be provided by the courts.’
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’.
R v June Oh Seo [2019] NSWSC 639 (31 May 2019) – New South Wales Supreme Court
Wilson J noted At [53]-
She was attacked by him in her own home, a home in which he had no right to be, Ms Choi having asked him to leave. Thus did what should have been a place of peace and safety become a place of great danger for Ms Choi.
At [82] –
‘Whilst there are men in the community, and it is mostly men, who view women as second class citizens who must bend to their will, when that attitude results in the commission of crime, and particularly violent crime, the courts will impose heavy punishment. Such conduct is never acceptable and it will be strongly repudiated by the courts.’
R v MCW [2018] QCA 241 (28 September 2018) – Queensland Court of Appeal
The Court referred to the Explanatory Notes for the Criminal Law (Domestic Violence) Amendment Bill (No 2) 2015 at [39] –
‘The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide…’
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’.
R v Davsanoglu [2019] VSC 332 (24 May 2019) – Victorian Supreme Court
Lasry J noted at [5] -
‘This is yet another case of a man inflicting his will on a woman by the use of fatal violence in her home. Whilst the circumstances of this case are unusual to a degree, in other respects, they are all too familiar. Violence by men against women remains of epidemic proportions, and it simply must be stemmed.’
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]).