Sentencing

The cases identified here provide examples of the way judicial officers have dealt with some of the issues raised in the context statement.

Click on the citation to be directed to a summary of the case in the Case Database.

  • Munda v Western Australia [2013] HCA 38 (2 October 2013) – High Court of Australia

    at [54]:

    ‘…To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.’
  • The Queen v Kilic [2016] HCA 48 (7 December 2016) – High Court of Australia
    Bell, Gageler, Keane, Nettle and Gordon JJ at [21]: ‘The requirement of currency [of sentencing practice] recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may 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.’
  • R v Vincent [2018] ACTSC 347 (12 December 2018) – Australian Capital Territory Supreme Court

    At [11], his Honour held that -

    ‘Domestic violence is an appalling crime. It offends the most basic norms of society. Sentencing in domestic violence matters must include considerations of both specific and general deterrence.’
  • R v East [2015] ACTSC 54 (16 February 2015) – Australian Capital Territory Supreme Court
    Penfold J at [16]: ‘Defence counsel submitted, and I accept, that Mr East does not seem to have any particular tendency towards criminal behaviour except in the context of this particular relationship, although of course I also bear in mind that much of the violent crime committed within domestic relationships is committed by men who otherwise live entirely within the law’.
  • R v Mazaydeh [2014] ACTSC 325 (13 November 2014) – Australian Capital Territory Supreme Court

    Murrell CJ at [15]-[16]: ‘These offences occurred in the context of a previous relationship between the offender and the victim and involved violence within the victim's home, an apparent sense of entitlement on the part of the offender, and humiliation through verbal and text abuse of the victim.

    ‘The sentencing purposes of punishment, general deterrence and denunciation are very important, as well as the recognition of harm to the victim personally and the community generally through offences of this nature. The victim provided a victim impact statement in which she referred to impacts upon her of the type that frequently result from offences of domestic violence, including feelings of anxiety, difficulty sleeping, difficulty concentrating at work and elsewhere, and an adverse effect on her ability to form relationships. Since the incident, the victim has moved house because she felt unsafe in the apartment where the offence occurred’.
  • Grimshaw v Mann [2013] ACTSC 189 (29 August 2013) – Australian Capital Territory Supreme Court

    Refshauge J at [49]-[51]: ‘The prosecution referred to the aggravating factor that the assault “took place in a public place.” I have some difficulty with that factor as an aggravating one. It implies that an assault in private is less serious. I am not sure that this follows.

    Most family violence occurs in private yet is regarded as very serious. Indeed, privacy can emphasise the vulnerability and helplessness of the victim.

    However that may be, intermediate Courts of Appeal have regularly referred to the fact that violent offences committed in public are more serious. See, for example, R v Freestone [2009] QCA 290 at[30], Ludeman v The Queen (2010) 208 A Crim R 298 at 321; [132], Smith v Tasmania [2012] TASCCA 3 at [32], R v Edwards [2012] QCA 117 at [23], Shoard v Van Der Zanden [2013] WASC 163 at[41]. This is the not the place to consider the rationale for such an approach; that will have to wait for another day. It is enough that the reliance by the learned Magistrate on the fact that the assault occurred in public as an aggravating factor was not an error’.
  • Ahmu v The Queen; DPP v Ahmu [2014] NSWCCA 312 (15 December 2014) – New South Wales Court of Criminal Appeal
    Adams J at [83]: ‘In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation’.
  • Cherry v R [2017] NSWCCA 150 (28 June 2017) – New South Wales Court of Criminal Appeal

    Johnson J at [78] (Macfarlane JA and Harrison J agreeing) said:

    ‘It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.’
  • Hurst v R [2017] NSWCCA 114 (31 May 2017) – New South Wales Court of Criminal Appeal

    At [132], the Court states –

    ‘It is, of course, not unusual with offences of this kind for there to be a considerable delay between the occurrence of the offence and complaint being made. That is a distinctive feature of domestic violence scenarios. Given the psychological considerations which may well have been in play, delay of this kind should not in any way be held against the victim. It is in fact a direct product of the nature of the offending itself and in that sense, it would be incongruous if an offender could gain a benefit from such delay.’
  • R v Eckermann [2013] NSWCCA 188 (15 August 2013) – New South Wales Court of Criminal Appeal

    Price J at [54]-[55]: ‘Notwithstanding the respondent's subjective circumstances that include love for his children, his employment and good prospects of rehabilitation, I am of the opinion that a suspended sentence was manifestly inadequate. This was a serious offence of violence by the respondent. When women (and men) enter into a new domestic relationship, they are entitled to do so without the threat of violence from a former partner. This is particularly so when there are children of the prior relationship as acts of violence towards a parent particularly when committed in the childrens' presence have the potential to impact severely upon their well-being and future development.

    ‘This Court has emphasised the seriousness with which violent attacks in domestic settings must be treated: Hiron v R [2007] NSWCCA 336. Specific and general deterrence, denunciation of the offending conduct and the protection of the community are important factors in sentencing a domestic violence offender: R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41; R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436; R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302. In my view, the respondent's subjective circumstances could not justify the suspension of the sentence. A full-time sentence of imprisonment was called for’.
  • R v Dunn [2004] NSWCCA 41 (21 December 2004) – New South Wales Court of Criminal Appeal
    Adams J at [47]: ‘Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind’.
  • R v Patsan [2018] NSWCCA 129 (29 June 2018) – New South Wales Court of Criminal Appeal

    At [39], Adamson J notes –

    ‘While every sentence imposed must have regard to all the circumstances particular to the specific case, individualised justice does not require sentencing judges to ignore patterns of behaviour which are repeated all too frequently before them.’

    Further, at [39], Adamson J notes –

    ‘The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant’s conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths.’
  • R v Smethurst [2018] NSWDC 488 (9 November 2018) – New South Wales District Court

    At [49], the Court held –

    ‘In recent times, domestic violence has become prevalent in society and general sentencing trends are favoured with emphasis on denunciation and general deterrence. The sentence to be imposed in this case will reflect the need for denunciation of this anti-social conduct.’
  • R v. Major; ex parte Attorney-General (Qld) [2011] QCA 210 (30 August 2011) – Queensland Court of Appeal
    McMurdo P at [53]: ‘The dreadful effects of prolonged episodes of domestic violence are notorious. They are consistent with those outlined in the complainant's victim impact statement, relevant parts of which were cited in the prosecutor's written submissions at sentence which defence counsel adopted. Deterrence, both personal and general, is an important factor in sentencing in domestic violence cases. So too is denunciation. The community through the courts seeks sentences which show the public disapprobation of such conduct. The effects of domestic violence go beyond the trauma suffered by victims, survivors and their children to their extended families, and friends. Domestic violence also detrimentally affects the wider community, causing lost economic productivity and added financial strain to community funded social security and health systems’.
  • R v Fairbrother; ex parte AG (Qld) [2005] QCA 105 (15 April 2005) – Queensland Court of Appeal
    McMurdo P at [23]: ‘Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator's actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim's wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity’.
  • R v Koch [2015] SASCFC 31 (27 March 2015) – Supreme Court of South Australia (Full Court)
    Parker J at [42]: ‘General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. The sentence imposed fails to provide the level of general deterrence necessary to ensure public confidence in the enforcement of the criminal law in this fraught area. It is necessary to grant permission to appeal in the interests of maintaining proper sentencing standards for offences of this kind’.
  • R v M, AG [2013] SASCFC 39 (24 May 2013) – Supreme Court of South Australia (Full Court)
    Sulan J at [42]: ‘The fact a complainant of rape was once in a sexual relationship with the offender does not mitigate the seriousness of the offence. There is a need to have particular regard to general deterrence, where the crime is premeditated and the offending occurs following the breakdown of a relationship.’
  • Gregson v Tasmania [2018] TASCCA 14 (31 August 2018) – Tasmanian Court of Criminal Appeal

    At [30], the Court held –

    ‘Men like the appellant who are minded to use physical violence against their female partners must understand that the community is greatly disturbed by this type of unacceptable conduct. Such violence is prevalent and will be met with significant terms of imprisonment. General deterrence was also an important factor in sentencing.’
  • Allen v Kerr [2009] TASSC 10 (25 February 2009) – Supreme Court of Tasmania
    Porter J at [27]: ‘General deterrence in relation to offences of violence is a weighty factor’.
  • DPP v Barnes & Barnes [2015] VSCA 293 (12 November 2015) – Victorian Court of Appeal

    This was a Crown appeal against sentence. Redlich JA at [68]-[69]: ‘In sentencing, the judge said this about Trevor’s offending: ‘I make it plain that I consider that you are the main offender in this criminal enterprise and the whole appalling saga was dictated by your immaturity and inability to control your anger in the context of your possessive and controlling behaviour of Ms Bethune, whom you had subjected to domestic violence on earlier occasions. In sentencing you, the court must denounce your conduct, give emphasis to general deterrence, and impose just punishment. A strong message needs to be sent to males in the community who are inclined to be violent towards their female partners. You do not own them. You have no right … menacingly [to] control them. If you lay a hand on them in anger, the law will not spare you punishment. Men who are bullies towards women usually have some psychological inadequacy. They need to look long and hard at themselves to try to understand why they are inclined to behave with anger and brutality, and seek professional help to overcome such inclinations.

    ‘In your case, emphasis must also be placed upon specific deterrence because of your prior history of violence towards Ms Bethune’.

    ‘Thus, it is plain that her Honour endeavoured to place considerable weight on the need for general deterrence, denunciation, just punishment, specific deterrence and protection of the community. In my view, however, the sentences imposed simply do not reflect the importance of those purposes in sentencing Trevor Barnes for these particular offences’.
  • Pasinis v The Queen [2014] VSCA 97 (22 May 2014) – Victorian Court of Appeal

    Kyrou JA at [53] and [57]: ‘Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.

    ‘General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm’.
  • R v Eustace [2019] VSC 189 (26 March 2019) – Victorian Supreme Court

    At [33], Taylor J stated: -

    ‘The killing of a domestic partner erodes a fundamental precept of our society, namely that all persons have a right to safety, respect and trust in their most intimate relationships.’

    At [35], Taylor J noted: -

    ‘Family violence and, particularly, family violence resulting in death, are matters of compelling and legitimate public concern. Accordingly, principles of general deterrence, denunciation and just punishment loom large in the sentencing exercise.’
  • McCoombe v The State of Western Australia [2016] WASCA 227 (20 December 2016) – Supreme Court of Western Australia (Court of Appeal)
    Newnes and Mazza JJA at [34]-[35]: ‘Count 4 was no aberration. It was part of a pattern of serious and ongoing domestic violence against D. The appellant has no real insight into his offending. He sought to justify what he did by blaming D. His antecedents are poor and it is apparent from them that, unless he changes his ways (something he has not been able to do up to date), he poses a high risk of further serious violent offending against his domestic partners. The appellant exhibits a continuing attitude of disobedience of the law. Retribution, deterrence and public protection were important sentencing factors which warranted a more severe sentence’.
  • Bropho v Hall [2015] WASC 50 (9 February 2015) – Supreme Court of Western Australia
    Mitchell J at [16]: ‘The fact that the aggravated assault occurred in a domestic setting is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender. The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation. As McLure P has noted [in The State of Western Australia v Cheeseman], the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for that kind of offence to take account of the need to protect persons in that vulnerable position, so far as the courts can do so by the imposition of a sentence, bearing a proper relationship to the overall criminality of the offence, which has a deterrent effect and, in an appropriate case, removes the offender to a place where there is no opportunity to violently attack their partner’ (this was approved by the court in Gillespie v The State of Western Australia [48]).