Sentencing

Sentencing laws vary between states and territories (see Table 1 below).

Where an offence is committed in the context of domestic and family violence and the offence breaches an existing protection order, this is usually considered an aggravating feature for sentencing purposes (it is not a mitigating factor) (see Table 2 below).

In all Australian jurisdictions it is possible for judicial officers to recognise the dynamics of family violence when sentencing offenders who have committed offences in the context of domestic and family violence.

Sentencing provides an important opportunity for judicial officers to clearly denounce domestic and family violence, to emphasise the accountability of the offender and to recognise the harm done to the victim.

It is important to consider community safety and protection in sentencing for offences that take place in the context of domestic and family violence. The safety of the victim may be a relevant consideration in the selection of an appropriate penalty.

Rehabilitation of the offender may be an appropriate aim in sentencing some offenders who have committed offences in the context of domestic and family violence. In such cases there may be benefits in utilising sentencing approaches that require the perpetrator to attend a perpetrator intervention program.

Courts have recognised that the need to deter future domestic and family violence is an important aim of sentencing for offences committed in the context of domestic and family violence.

Generally The Queen v Kilic (2016) 259 CLR 256 at [21]
Munda v Western Australia (2013) 249 CLR 600 at [54]–[55]
Australian Capital Territory Section 34B Crimes (Sentencing) Act 2005 (ACT).
See for example: R v Wyper [2017] ACTCA 59
New South Wales ss 4A, 4B, see also 21A(2)(d) Crimes (Sentencing Procedure) Act 1999 (NSW)
Judicial Commission of NSW, Sentencing Bench Book (2021)
Diaz v The Queen [2018] NSWCCA 33 (14 March 2018)
Northern Territory See for example: Emitja v The Queen [2016] NTCCA 4
Queensland ss 9(10A) and 12A Penalties and Sentences Act 1992 (Qld)
Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2021),
See for examples: R v Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011)
R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105
South Australia Sentencing Act 2017 (SA)
See for example: Warne v The Queen [2020] SASCFC 124 (21 December 2020)
Tasmania See for example Director of Public Prosecutions v Karklins [2018] TASCCA 6 (20 April 2018)
See also: ss 13 and 13A Family Violence Act 2004 (Tas)
Victoria Judicial College of Victoria, Victorian Sentencing Manual (2022)
Judicial College of Victoria, Family Violence Bench Book (2014) especially 4.2
ss124E and 124F Sentencing Act 1995 (WA) regarding sentencing serial family violence offenders.
See Legal Aid Western Australia, Family violence offences & Serial Family Violence Offenders, 2021
Western Australia Department of Attorney General (WA), Equality Before the Law: Bench Book (2021)
See for example: Bropho v Hall [2015] WASC 50 (9 February 2015)

See also 9.3.1 Sentencing Considerations- Breaches of protection Orders:

Table 1: Jurisdictional approaches to sentencing breaches of protection orders.