NSW
Judicial Commission of NSW, Sentencing Bench Book (updated 2021).
[63-500] ‘Domestic violence offences’ is a dedicated chapter of the bench book dealing with the sentencing approach to domestic violence and apprehended violence orders. For breaches of apprehended violence orders, the bench book notes s 14(4) of the Crimes (Domestic and personal Violence) Act 2007 that states ‘[u]nless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person’ [63-520].
[2-240] ‘To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)’ notes that ‘weight should be given by a court to general and specific deterrence for a range of offences’ including ‘violent offences: committed in a domestic context: Simpson v R [2014] NSWCCA 23 at [35]; Smith v R [2013] NSWCCA 209 at [69]; R v Hamid (2006) 164 A Crim R 179 at [68]; and premeditated violence, particularly leading to grievous bodily harm, in R v Najem [2008] NSWCCA 32 at [33]’.
Vic
Judicial College of Victoria, Victorian Sentencing Manual (2022).
Part 8.1 Sanction of last resort
‘Legislation and the common law state that imprisonment is the sanction of last resort and is not to be imposed unless the court is satisfied that no other penalty is appropriate. Specifically, the Sentencing Act 1991(Vic) ss 5(4)-(4C) (‘the Act’) state that a sentence requiring confinement of the offender cannot be imposed unless the court considers that the sentencing purposes cannot be met by another sentence.’
25.2.1 Generally...
8. family violence: brutal treatment of a domestic partner or family member involves a serious breach of trust, especially in the home where the victim is entitled to feel safe illustrates the gravity of the crime and the offender’s moral culpability. As do controlling actions such as monitoring the victim’s movements, habits, reactions, fears, and responses. Any sort of violence in the domestic realm is never permissible and self-justifying statements such as, “I snapped”, do not mitigate either the offender’s culpability or the seriousness of the offending.
Similarly, inaction in the domestic context may be reflective of gravity and culpability. A parent/adult has a high duty of care to a child or infant they are looking after. This duty has two aspects: provide for the child’s needs and protect them from harm. Failing to protect the child from harm, or causing that harm, even if negligently in the belief that it is appropriate discipline, is a grave breach of this duty.
Although being exposed to domestic violence at a young age may explain an offender’s attitude towards family violence and discipline of children, it cannot excuse negligent conduct or reduce the offender’s culpability for causing harm to a child. Further, post-offence conduct, such as attempting to shift fault, illuminates the offender’s moral culpability even in cases where is not directly raised on the plea. Behaving in a manner that harms a child after having been repeatedly warned not to act in such a fashion, makes the offender highly culpable. (references removed). (p359).
25.3
General deterrence and denunciation are particularly for offending occuring in the context of family violence, even where the victim supports the offender and seeks leniency on the plea.
NSW
Judicial Commission of NSW, Sentencing Bench Book (updated 2021).
[63-500] ‘Domestic violence offences’ is a dedicated chapter of the bench book dealing with the sentencing approach to domestic violence and apprehended violence orders. For breaches of apprehended violence orders, the bench book notes s 14(4) of the Crimes (Domestic and personal Violence) Act 2007 that states ‘[u]nless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person’ [63-520].
[2-240] ‘To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)’ notes that ‘weight should be given by a court to general and specific deterrence for a range of offences’ including ‘violent offences: committed in a domestic context: Simpson v R [2014] NSWCCA 23 at [35]; Smith v R [2013] NSWCCA 209 at [69]; R v Hamid (2006) 164 A Crim R 179 at [68]; and premeditated violence, particularly leading to grievous bodily harm, in R v Najem [2008] NSWCCA 32 at [33]’.
Vic
Judicial College of Victoria, Victorian Sentencing Manual (2022).
Part 8.1 Sanction of last resort
‘Legislation and the common law state that imprisonment is the sanction of last resort and is not to be imposed unless the court is satisfied that no other penalty is appropriate. Specifically, the Sentencing Act 1991(Vic) ss 5(4)-(4C) (‘the Act’) state that a sentence requiring confinement of the offender cannot be imposed unless the court considers that the sentencing purposes cannot be met by another sentence.’
25.2.1 Generally...
8. family violence: brutal treatment of a domestic partner or family member involves a serious breach of trust, especially in the home where the victim is entitled to feel safe illustrates the gravity of the crime and the offender’s moral culpability. As do controlling actions such as monitoring the victim’s movements, habits, reactions, fears, and responses. Any sort of violence in the domestic realm is never permissible and self-justifying statements such as, “I snapped”, do not mitigate either the offender’s culpability or the seriousness of the offending.
Similarly, inaction in the domestic context may be reflective of gravity and culpability. A parent/adult has a high duty of care to a child or infant they are looking after. This duty has two aspects: provide for the child’s needs and protect them from harm. Failing to protect the child from harm, or causing that harm, even if negligently in the belief that it is appropriate discipline, is a grave breach of this duty.
Although being exposed to domestic violence at a young age may explain an offender’s attitude towards family violence and discipline of children, it cannot excuse negligent conduct or reduce the offender’s culpability for causing harm to a child. Further, post-offence conduct, such as attempting to shift fault, illuminates the offender’s moral culpability even in cases where is not directly raised on the plea. Behaving in a manner that harms a child after having been repeatedly warned not to act in such a fashion, makes the offender highly culpable. (references removed). (p359).
25.3
General deterrence and denunciation are particularly for offending occuring in the context of family violence, even where the victim supports the offender and seeks leniency on the plea.