Australia
Australian Law Reform Commission (ALRC) (2017) Pathways to justice: Inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples (2017).
12.23 Aboriginal and Torres Strait Islander people are over-represented as fine recipients and are less likely than non-Indigenous people to pay a fine at the time of issue of the initial notice (attributed to financial capacity, itinerancy and literacy levels). Aboriginal and Torres Strait Islander people are consequently susceptible to escalating fine debt and fine enforcement measures. (references removed).
Douglas, Heather and Tanja Stark, Stories from Survivors: Domestic Violence and Criminal Justice Interventions (2010).
This research draws on interviews with 20 women who had experienced domestic violence, many of whom gave evidence in domestic violence-related court proceedings. Some of the women reported:
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Speaking out in court was the first time many women spoke publicly about their abuse;
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Some women felt that they were in danger when they went to court (p 70);
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That court staff should be properly trained about domestic violence;
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It would be helpful if court staff could advise when the violent partner had left court (p 71);
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It was extremely stressful waiting in the court foyer for their matter to be called. Some women experienced further intimidation and abuse from their former partners while waiting for their case to be called on while others were worried that further trouble might arise;
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When they had access to safe rooms to wait they felt much safer and less intimidated (p 73);
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Different access points to the court for victims and offenders (p 74).
Douglas, Heather and Lee Godden, ‘Decriminalisation of Domestic Violence: Possibilities for Reform’ (Paper presented at the “Expanding Our Horizons” Conference, Sydney, 18-22 February 2002).
This paper examined the interaction between the Queensland Criminal Code and the Domestic Violence (Family Protection) Act. Specifically, with regards to fines, the paper reports: there is a broad recognition that the imposition of fines is inappropriate in matters of domestic violence, as they are often paid by the accused or from the joint household income (p 10). In some studies it is noted that women believed that fines were an indication that the court had not taken the incident seriously (p 14)
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) Sentencing breaches of Family Violence Intervention Orders and Safety Notices: Third Monitoring Report (2022).
Reviews Victorian data on breaches of protection orders in 2020.
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A stable rate of fines of between 21% and 25% imposed on non-aggravated breaches of Family Violence Safety Notices (FVSNs) and Family Violence Intervention Orders (FVIOs) each year since 2011 (xiii).
Stewart, Anna, Domestic Violence: Deterring Perpetrators. Paper presented at the 3rd National Outlook Symposium Mapping the Boundaries of Australia’s Criminal Justice System, Canberra, 22-23 March 1999.
This paper explores how the criminal justice system can adequately respond to the issue of domestic violence and the role of the victim in deterring perpetrators. With regard to the imposition of fines, the author considered them an unhelpful punishment as they were inevitably paid for out of the household budget (p 10)
Sentencing Advisory Council (Tas), Sentencing of Adult Family Violence Offenders: Final report No.5 (2015).
See section 3.83 The Use of Fines.
‘The purpose of a fine is ‘generally said to be to be to punish the offender and to act as a deterrent to future offending by the offender and others.’ However, in the context of family violence, a fine may also in effect punish the victim as well. The Victorian Sentencing Advisory Council has considered the use of fines for breaches of family orders and suggests that they are ‘generally an inappropriate sanction.’ The Council noted that they do not address the offending behaviour and in any case it is often the victim who ends up with the burden of paying the fine. The offender may threaten or coerce the victim into paying the fine for him. Funds which would otherwise be used to satisfy the needs of the family — food, clothing, rent or child support — are directed instead to paying the fine. The Victorian Council recognised that ‘sentences with more flexibility in terms of punishment (such as conditional orders that can incorporate community work and/or a financial condition)’ which are structured to ensure that the burden of the penalty falls on the offender are more appropriate for this offence.’ (p31)
Trimboli, Lili, ‘Persons convicted of breaching Apprehended Domestic Violence Orders: their characteristics and penalties’ NSW Bureau of Crime and Statistics Research, Issue 102, January 2015.
This paper describes the characteristics of those found guilty of breaching an Apprehended Domestic Violence Order (ADVO) in NSW in 2013 and the principal penalties they received. Of 3,154 persons who were found guilty of breaching an ADVO as their principal offence about one in five (22.5%) received a bond without supervision (average length=14 months) as their principal penalty; 17.8 per cent (n 560) were fined (average amount=$432) (p4).
International
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. Notes that a review of reported studies 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’ (at47).
Ventura, L., and G. Davis. “Domestic Violence: Court Case Conviction and Recidivism.” (2005) 11(2) Violence Against Women 255-277.
This USA study examined recidivism among a cohort of 519 cases. The only sanction found to be significantly associated with recidivism was receiving a suspended sentence or fines (p271). Of the 15 ‘batterers’ who received a suspended sentence or fines recidivated on another domestic violence charge during the 1-year follow-up period. By comparison, of the 189 convicted batterers who received sanctions of jail time, work release sentence, electronic monitoring, or probation, only 44 (23.3%) were rearrested on domestic violence during the follow-up period. (p272) The authors conclude in part: ‘that any deterrent value of conviction may be negated when the sanctions imposed are only suspended sentences or fines. Such sanctions may have little impact on the convicted batterer. If a convicted batterer receives only a fine or a suspended jail sentence without probation, the offender has no specific rules or treatment requirements to complete to avoid incarceration. There is no ongoing monitoring of the batterer. This lack of monitoring and lack of accountability maybe interpreted by a batterer as the equivalent of receiving a free pass to do as he pleases.’
Sentencing Advisory Councils in Victoria and Tasmania explain that the purpose of a fine is to punish the offender and act as a deterrent to future offending by the offender and others. However, it is acknowledged that, in the context of domestic and family violence, a fine may not be an appropriate sanction because it may adversely impact the victim. For example, the fine may need to be paid from the joint financial resources of the victim and offender, or the offender may threaten or coerce the victim into paying the fine. This outcome may perpetuate the violence experienced by the victim and erode financial resources necessary to meet the daily living needs of the victim and their families.
In some studies victims have reported feeling that the imposition of a fine trivialised or minimised the harm they had experienced, or feeling that the court had not taken a breach of a protection order charge seriously where a fine was ordered. US research indicates that less intrusive sentences (such as fines and suspended sentences) impose limited responsibility on an offender to account for the harm they have caused, or to take steps to change their behaviour.
Other Australian bench books explain the potentially adverse implications of fines as a penalty option in the domestic and family violence context, and encourage judicial officers to have regard to all relevant factors, including the offender’s financial means.
Sentencing Advisory Councils in Victoria and Tasmania explain that the purpose of a fine is to punish the offender and act as a deterrent to future offending by the offender and others. However, it is acknowledged that, in the context of domestic and family violence, a fine may not be an appropriate sanction because it may adversely impact the victim. For example, the fine may need to be paid from the joint financial resources of the victim and offender, or the offender may threaten or coerce the victim into paying the fine. This outcome may perpetuate the violence experienced by the victim and erode financial resources necessary to meet the daily living needs of the victim and their families.
In some studies victims have reported feeling that the imposition of a fine trivialised or minimised the harm they had experienced, or feeling that the court had not taken a breach of a protection order charge seriously where a fine was ordered. US research indicates that less intrusive sentences (such as fines and suspended sentences) impose limited responsibility on an offender to account for the harm they have caused, or to take steps to change their behaviour.
Other Australian bench books explain the potentially adverse implications of fines as a penalty option in the domestic and family violence context, and encourage judicial officers to have regard to all relevant factors, including the offender’s financial means.