NSW
Judicial Commission of NSW, Sentencing Bench Book (updated 2021).
See [63.515]-[63.518] sentencing domestic violence offences.
Domestic violence is accepted to be a blight on civil society. A court sentencing an offender for an offence committed in what is loosely described as a “domestic context” must apply specifically developed sentencing principles.
The High Court in The Queen v Kilic (2016) 259 CLR 256 at [21] recognised a societal shift in relation to domestic violence:
… current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.
The community’s concern at the level of domestic violence, generally inflicted by men against women, is given effect in sentencing by recognising the importance of general and specific deterrence. In that context, in Yaman v R [2020] NSWCCA 239 at [135] Wilson J (Fullerton and Ierace JJ agreeing) said:
The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.
See [12.850] “The relevance of the attitude of the victim – vengeance or forgiveness”:
Domestic violence
In R v Glen (unrep, 19/12/94, NSWCCA), Simpson J stressed the importance, particularly in domestic violence cases, of general deterrence. Her Honour emphasised that:
It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim’s word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.
R v Glen was quoted at length and with approval in R v Burton [2008] NSWCCA 128 at [103]. Justice Johnson affirmed the need for “… caution where a victim of a domestic violence offence expresses forgiveness and urges imposition of a lenient sentence for the offender” at [105].
In R v Newman [2004] NSWCCA 102, Howie J, citing R v Bradford (unrep, 6/5/88, NSWCCA), noted at [83]: that there may be the comparatively rare cases where forgiveness of the accused by the victim may be a relevant fact. Most cases, where this issue has been considered, have been in the context of domestic violence.
In R v Kershaw [2005] NSWCCA 56, Bryson JA said at [24]: In cases involving domestic violence it happens from time to time that a complainant is shown to have a forgiving and optimistic attitude about violence in the relationship which it is difficult for others to understand or share. The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence.
In Shaw v R [2008] NSWCCA 58, the court at [27] held that the judge did not err in being cautious about giving any weight to those aspects of the victim’s statutory declaration where she addressed her own responsibility for the deterioration in the relationship, her desire to withdraw her statement to police and her desire for her family to be reunited. This was an approach open to his Honour since it is the experience of sentencing courts that victims of domestic violence may be actively pressured to forgive their assailants or compelled for other reasons to show a preparedness to forgive them.
See also discussion of AC v R [2016] NSWCCA 107 at [12-832].
QLD
Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2021).
Sections [20.1], [20.2], [20.3]; [20.8];[20.9] discuss the principles and issues relating to the sentencing for breach of a domestic violence order or police protection notice.
Vic
Judicial College of Victoria, Family Violence Bench Book (2014).
See [4.1.1] - [4.1.3] for a discussion of sentencing and family violence in the context of the Family Violence Protection Act 2008.
See [4.2] for a discussion of sentencing for other criminal offences in the context of family violence.
NSW
Judicial Commission of NSW, Sentencing Bench Book (updated 2021).
See [63.515]-[63.518] sentencing domestic violence offences.
Domestic violence is accepted to be a blight on civil society. A court sentencing an offender for an offence committed in what is loosely described as a “domestic context” must apply specifically developed sentencing principles.
The High Court in The Queen v Kilic (2016) 259 CLR 256 at [21] recognised a societal shift in relation to domestic violence:
… current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.
The community’s concern at the level of domestic violence, generally inflicted by men against women, is given effect in sentencing by recognising the importance of general and specific deterrence. In that context, in Yaman v R [2020] NSWCCA 239 at [135] Wilson J (Fullerton and Ierace JJ agreeing) said:
The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.
See [12.850] “The relevance of the attitude of the victim – vengeance or forgiveness”:
Domestic violence
In R v Glen (unrep, 19/12/94, NSWCCA), Simpson J stressed the importance, particularly in domestic violence cases, of general deterrence. Her Honour emphasised that:
It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim’s word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.
R v Glen was quoted at length and with approval in R v Burton [2008] NSWCCA 128 at [103]. Justice Johnson affirmed the need for “… caution where a victim of a domestic violence offence expresses forgiveness and urges imposition of a lenient sentence for the offender” at [105].
In R v Newman [2004] NSWCCA 102, Howie J, citing R v Bradford (unrep, 6/5/88, NSWCCA), noted at [83]: that there may be the comparatively rare cases where forgiveness of the accused by the victim may be a relevant fact. Most cases, where this issue has been considered, have been in the context of domestic violence.
In R v Kershaw [2005] NSWCCA 56, Bryson JA said at [24]: In cases involving domestic violence it happens from time to time that a complainant is shown to have a forgiving and optimistic attitude about violence in the relationship which it is difficult for others to understand or share. The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence.
In Shaw v R [2008] NSWCCA 58, the court at [27] held that the judge did not err in being cautious about giving any weight to those aspects of the victim’s statutory declaration where she addressed her own responsibility for the deterioration in the relationship, her desire to withdraw her statement to police and her desire for her family to be reunited. This was an approach open to his Honour since it is the experience of sentencing courts that victims of domestic violence may be actively pressured to forgive their assailants or compelled for other reasons to show a preparedness to forgive them.
See also discussion of AC v R [2016] NSWCCA 107 at [12-832].
QLD
Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2021).
Sections [20.1], [20.2], [20.3]; [20.8];[20.9] discuss the principles and issues relating to the sentencing for breach of a domestic violence order or police protection notice.
Vic
Judicial College of Victoria, Family Violence Bench Book (2014).
See [4.1.1] - [4.1.3] for a discussion of sentencing and family violence in the context of the Family Violence Protection Act 2008.
See [4.2] for a discussion of sentencing for other criminal offences in the context of family violence.