Australia
Australian Law Reform Commission (ALRC) Pathways to justice: Inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples (2017).
This report considers the pathways and contributors to the disproportionate incarceration of Aboriginal and Torres Islander people.
‘Available research suggests that Aboriginal and Torres Strait Islander women experience family violence at a higher rate than the broader Australian community, and that the majority of Aboriginal and Torres Strait Islander women in prison have experienced physical or sexual abuse. The Human Rights Law Centre and Change the Record Coalition have noted: “The overwhelming majority of Aboriginal and Torres Strait Islander women in prison are survivors of physical and sexual violence. Many also struggle with housing insecurity, poverty, mental illness, disability and the effects of trauma. ... Criminal justice systems across Australia continue to be largely unresponsive to the unique experiences, circumstances and strengths of Aboriginal and Torres Strait Islander women.”’ (p24) (references removed).
2.86 Available research suggests that the majority of Aboriginal and Torres Strait Islander women in prison have experienced physical or sexual abuse.
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
Chapter 12 discusses penalties and sentencing for breach of protection orders. Of note:
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The drawbacks of imprisonment are highlighted: “The use of imprisonment is costly in both financial and human terms, including for families. It may be an important means for providing some period of safety for victims, at least in the interim while the offender is in custody, as well as serving other traditional sentencing objectives, but it can be damaging. The alleged benefits of incarceration should not be overstated. Offenders may not necessarily receive access to appropriate treatment or other programs while in custody. The negative effects of prison may further undermine the offender’s capacity to live a socially productive life. Imprisonment should be used sparingly and when justified by the facts.” (12.165)
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Other options raised (as an alternative to imprisonment) included financial sanctions and community service orders (provided the work is ‘meaningful, constructive and rehabilitative’) (12.173)
Blokland, Justice Jenny, ‘Unnecessary suffering: Violence against Aboriginal women in the Northern Territory – A discussion of contemporary issues and possible ways forward’ (2016) 3 Northern Territory Law Journal 3.
Imprisonment is the most common form of punishment in cases of assaults by men against women (p. 4). ‘Imprisonment has generally been the sentencing outcome regardless of the contribution of the minimum mandatory terms of imprisonment. Imprisonment will obviously continue to be utilised; however, it is clear the imprisonment is not reducing the incidence of this form of violence. The reason this article focuses on this form of violence is in an attempt to understand and improve the situation, not to demonise any Aboriginal person, male or female, or their legal representatives, but to encourage diverse approaches that might deal with the problem’ (p. 10).
‘Although incarceration as a response to violence in this setting may serve a purpose in providing respite to victims for the term of imprisonment, it is clearly not deterring like-minded offenders. More significantly, for many offenders, it is not effecting behavioural changes to stop the physical violence’(p. 13).
Bond, Christine EW and Samantha Jeffries, ‘Similar Punishment? Comparing Sentencing Outcomes in Domestic and Non-Domestic Violence Cases’ (2014) 54 British Journal of Criminology 849.
Using a population of cases sentenced in New South Wales lower courts between January 2009 and June 2012, this article reports ‘multivariate analyses of the sentencing of domestic violence and non-domestic violence offences.’ Results show that when sentenced under statistically similar circumstances, domestic violence offenders are less likely than those convicted of crimes outside of domestic contexts to be sentenced to prison although the substantive impact is small. Further, of those imprisoned, domestic violence offenders receive significantly shorter terms of imprisonment. The findings also suggest that, ‘for domestic violence offences, there may be a ‘punishment cost’ to being older, male and Indigenous’ (p. 849).
Sentencing Advisory Council (Vic) (2022) Sentencing breaches of Family Violence Intervention Orders and Safety Notices: Third Monitoring Report.
Reviews Victorian data on breaches of protection orders in 2020.
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40% of breach offences had received a term of imprisonment in 2020 (xiii).
Trevena, J. and Poynton, S. (2016) ‘Does a prison sentence affect future domestic violence reoffending?’, Crime and Justice Bulletin 190.
Aim: To examine whether short prison sentences (up to 12 months) exert a deterrent effect for domestic-violence (DV) related offending.
Method: Propensity score matching was used to compare time to reoffence among 1,612 matched pairs of offenders, in which one of each pair received a prison sentence of 12 months or less and the other received a suspended sentence of two years or less. Kaplan-Meier survival analysis was then used to examine time to the first proven offence committed after the index court appearance.
Results: In the matched analysis, DV-related reoffending was not significantly different for people with suspended sentences and prison sentences. After 1 year, 20.3% of people given a suspended sentence and 20.3% of people given prison sentence had at least one new DV-related offence, and after 3 years the proportions were 34.2% and 32.3% respectively. These were not significantly different (HR 0.96, p=0.6).
Conclusion: Short prison sentences (up to 12 months) are no more effective in deterring DV-related reoffending than suspended sentences.
Trevena, Judy and Don Weatherburn, ‘Does the first prison sentence reduce the risk of further offending?’ [2015] (187) Contemporary Issues in Crime and Justice 1.
This study examines whether short prison sentences (up to 12 months) exert a special deterrent effect (it does not specifically examine sentencing in family violence cases). Australian and international studies ‘have found little evidence that offenders given a prison sentence are any less likely to re-offend than comparable offenders given a non-custodial sanction. In fact, a prison sentence may increase the likelihood of re-offending, perhaps by providing opportunities to learn criminal behaviour and attitudes from others while in custody or because the stigma of being labelled reduces opportunities to pursue a non-criminal way of life on release’ (p. 1). ‘The main finding of this study is that, in a matched comparison between groups of offenders who got either a prison sentence or a suspended sentence, the subsequent time to re-offend did not depend on the type of sentence received. This suggests that there is no particular deterrent effect in receiving a prison sentence for people who had not previously been sentenced to prison, and is consistent with other findings (p. 11).
International
Bell, Margret E et al, ‘Criminal Case Outcomes, Incarceration, and Subsequent Intimate Partner Violence’ (2013) 28(5) Journal of Family Violence 489.
Abstract: ‘Given the centrality of court interventions to the U.S. response to intimate partner violence (IPV), it is crucial to evaluate their impact on reabuse. To do so, this study examined whether female IPV victims’ experiences of abuse in the year following a criminal court case against their partner varied by case outcome or by whether the batterer had or had not been incarcerated. Consistent with prior research, [this article found] no main effect differences in reabuse trajectories by court case outcome or by incarceration. [This study] also examined variables that might moderate the impact of case outcome and incarceration on rebause and found that although batterer legal history did not affect the impact of case outcome, his age, Time 1 employment status, the couple’s Time 1 living arrangement, and duration of abuse did interact with case outcome’ (p. 489).
Durante, K. et al (2024) ‘Intimate partner violence and partner incarceration: Perceived and experienced challenges during reentry’, Crime and Delinquency 1-22 (online first), doi: 10.1177/00111287241242477.
Women’s experiences with intimate partner violence (IPV) victimization and concerns and challenges regarding their partner’s reentry after prison were analyzed using three waves of panel data (n = 866). Having been a victim of IPV before their partner’s incarceration, especially of incidents involving emotional violence and alcohol or drug use, is associated with elevated concerns regarding their ability to trust their partner, their partner’s ability to live up to their expectations, and being angry at their partner. IPV victimization was a more consistent predictor of having these concerns than of experiencing these challenges upon their partner’s reentry. Women’s concerns regarding reentry challenges were weakly to moderately related to the experiences the women had upon their partner’s reentry. (US research)
Garner, Joel H., Maxwell. D. Christopher, and Lee, Jina, The Specific Deterrent Effects of Criminal Sanctions for Intimate Partner Violence: A Meta-Analysis, 111 J. Crim. L. & Criminology 227 (2020).
From abstract: …this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal sanctions—prosecution, conviction, and incarceration—for one offense type—intimate partner violence. Based upon 57 studies that reported 237 tests of specific deterrence theory, the effects of sanctions varied: there is a marginal deterrent effect for prosecution, no effect for conviction, and a large escalation effect among incarcerated offenders. In addition, deterrent effects in the available research are stronger in tests that use more rigorous research designs, that measure repeat offending using victim interviews instead of official records, and that use new offenses against the same victim—not new arrests or new convictions against any victim—as the criteria for repeat offending.
Klein, Andrew Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges (National Institute of Justice, U.S. Department of justice Programs: 2009).
This is a comprehensive review of USA based research on issues relevant to domestic violence and law enforcement. The recommendations are made in the US context. This study notes: ‘The research is fairly consistent. Simply prosecuting offenders without regard to the specific risk they pose, unlike arresting domestic violence defendants, does not deter further criminal abuse. The minority of abusers arrested who are low risk are unlikely to reabuse in the short run, whether prosecuted or not. Alternatively, without the imposition of significant sanctions including incarceration, the majority of arrested abusers who are high risk will reabuse regardless of prosecution — many while the case against them is pending.’ (at 52).
The author references a study that confirms that ‘the more intrusive sentences — including jail, work release, electronic monitoring and/or probation — significantly reduced rearrest for domestic violence as compared to the less intrusive sentences of fines or suspended sentences without probation. The difference was statistically significant: Rearrests were 23.3 percent for defendants with more intrusive dispositions and 66 percent for those with less intrusive dispositions’ (at p52).
The author concludes: ‘Simply imposing guilty findings may not reduce the risk of reabuse. Judges should consider more intrusive sentences, including incarceration, for repeat abusers and those with prior criminal histories. (Research basis: Although studies conflict with each other on the subject of abuse prosecution, several sentencing studies suggest that more intrusive sentences may significantly deter reabuse.)’ (p53)
Kramer, Ronald, ‘Differential Punishment of Similar Behaviour: Sentencing Assault Cases in Specialised Family Violence Court and ‘Regular Sentencing’ Courts’ (2015) British Journal of Criminology Advance Access 1.
Based on fieldwork conducted in a large, urban district court in New Zealand, this article explores legal responses to domestic and non-domestic assaults. It finds that men who assault intimate partners receive sentences that emphasize their rehabilitative needs and often result in discharges without conviction. Conversely, non-domestic assaults are met with relative severity’ (p. 1).
In some circumstances a period of imprisonment will be the only appropriate option or the only option available in sentencing an offender charged with an offence committed in the context of domestic and family violence.
Australian and international studies demonstrate that offenders in general who are sentenced to a term of imprisonment are no less likely to reoffend than offenders given a non-custodial sanction. In fact, a prison sentence may increase the likelihood of reoffending where the offender has the opportunity to learn criminal behaviour and attitudes while in custody, or the stigma of having been incarcerated reduces their prospects of leading a non-criminal way of life on release.
A New South Wales lower courts study has shown that domestic and family violence related offenders are less likely than those convicted of other offences to be sentenced to imprisonment; and, when imprisoned, they receive significantly shorter terms. A judicial study conducted in the Northern Territory reported however that imprisonment of Aboriginal and Torres Strait Islander offenders is currently the most common form of punishment in domestic and family violence related matters. It observed that while incarceration may give the victim some respite from the violence, it may not be effective in deterring the offender or like-minded offenders from violence in the future or in positively changing offender behaviours. A US study found that offenders who served a prison sentence or were placed in a community corrections facility or received a suspended sentence exhibited much higher rates of recidivism, and that imprisonment proved effective only when combined with mandated treatment of the offending behaviour.
The Australian Law Reform Commission review of legal responses to domestic and family violence highlighted the drawbacks of imprisonment as a sentencing option for domestic and family violence related offenders. While it may be a means of serving traditional sentencing objectives and providing a period of safety for victims during the offender’s time in custody, it may be damaging to family relationships and financial wellbeing and to the offender’s capacity to live a socially productive life.
In some circumstances a period of imprisonment will be the only appropriate option or the only option available in sentencing an offender charged with an offence committed in the context of domestic and family violence.
Australian and international studies demonstrate that offenders in general who are sentenced to a term of imprisonment are no less likely to reoffend than offenders given a non-custodial sanction. In fact, a prison sentence may increase the likelihood of reoffending where the offender has the opportunity to learn criminal behaviour and attitudes while in custody, or the stigma of having been incarcerated reduces their prospects of leading a non-criminal way of life on release.
A New South Wales lower courts study has shown that domestic and family violence related offenders are less likely than those convicted of other offences to be sentenced to imprisonment; and, when imprisoned, they receive significantly shorter terms. A judicial study conducted in the Northern Territory reported however that imprisonment of Aboriginal and Torres Strait Islander offenders is currently the most common form of punishment in domestic and family violence related matters. It observed that while incarceration may give the victim some respite from the violence, it may not be effective in deterring the offender or like-minded offenders from violence in the future or in positively changing offender behaviours. A US study found that offenders who served a prison sentence or were placed in a community corrections facility or received a suspended sentence exhibited much higher rates of recidivism, and that imprisonment proved effective only when combined with mandated treatment of the offending behaviour.
The Australian Law Reform Commission review of legal responses to domestic and family violence highlighted the drawbacks of imprisonment as a sentencing option for domestic and family violence related offenders. While it may be a means of serving traditional sentencing objectives and providing a period of safety for victims during the offender’s time in custody, it may be damaging to family relationships and financial wellbeing and to the offender’s capacity to live a socially productive life.