Sentencing

NSW

  • Judicial Commission of NSW, Sentencing Bench Book (2018).

    [63-510] ‘Sentencing approach to domestic violence’ provides that, ‘[t]he courts have recognised the special dynamics of domestic violence. A victim of a domestic violence offence is personally targeted by the offender and the offence is usually part of a larger picture of physical and mental violence in which the offender exercises power and control over the victim: R v Burton [2008] NSWCCA 128 at [97].

    The offender often has a genuine, albeit irrational, belief of being wronged by the victim and also believes the violence is justified: Xue v R [2017] NSWCCA 137 at [53]; Ahmu v R; DPP v Ahmu [2014] NSWCCA 312 at [83]. But a resort to violence is not justified even if the belief turns out to be correct: Xue v R at [53]; see also Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86].

    There is a continuing threat to the victim’s safety even where the victim becomes estranged from the offender: R v Dunn (2004) 144 A Crim R 180 at [47]. The victim may forgive the offender against their own interests: R v Glen [1994] NSWCCA 1 (19 December 1994); R v Rowe (1996) 89 A Crim R 467; R v Burton at [105]. Sentencing courts must treat such forgiveness with caution and attribute weight to general and specific deterrence, denunciation and protection of the community: R v Hamid (2006) 164 A Crim R 179 at [86]; Simpson v R [2014] NSWCCA 23 at [35]; R v Eckermann [2013] NSWCCA 188 at [55]; Ahmu v R; DPP v Ahmu at [83]. The attitude of the victim cannot interfere with the exercise of the sentencing discretion: R v Palu (2002) 134 A Crim R 174 at [37]. See DPP (NSW) v Vallelonga [2014] NSWLC 13 for an example of the application of the above principles’.

    [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]’.

QLD

Vic

  • Judicial College of Victoria, Family Violence Bench Book (2014).
    4.2 discusses criminal offences in the context of family violence, including gravity of offences, sentencing purposes, and the relevance of the attitude of the victim. 4.1.1 discusses the contravention of a family violence intervention order, including sentencing, sentencing practices, and types of sanctions.
  • Judicial College of Victoria, Victorian Sentencing Manual (2015).

    Chapter 7 discusses sentencing purposes, and 29.4 sentencing purposes for causing injury offences. Chapter 9 discusses the circumstances of the offence including offences involving family violence (9.15). 29.3 examines the seriousness of the causing injury offences, including those causing injury in a family violence context (29.3.13). 31.3 examines considerations relevant to the gravity of sexual offences, including sexual offences in a family violence context (31.3.3).

    Note: The former Sexual Assault Manual has been replaced. The overlapped content in the Sexual Assault Manual continues to be available in the Criminal Charge Book, Victorian Sentencing Manual and Victorian Criminal Proceedings Manual.

WA

  • Department of Justice (WA), Equal Justice Bench Book (2nd edition September 2017).

    Note: Chapter 13 Family and Domestic Violence is currently under review. Until revision is completed, the first edition chapter 13 applies. The following text is based on the first edition chapter.

    Chapter 13 covers domestic and family violence.

    13.3.8: Your sentencing, decision(s) and/or written judgment or decision must be fair and non-discriminatory to any victim of family or domestic violence who is affected by or referred to in your sentencing, decision and/or written judgment or decision — and preferably should be considered to be fair and non-discriminatory by them.

    Points to consider:

    • if a witness is not personally capable of giving a victim impact statement for any reason, consider whether it is appropriate for someone else to do so on the victim’s behalf.
    • whether to quote from a victim impact statement in court.