Listening to victims

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.

  • R v Vincent [2018] ACTSC 347 (12 December 2018) – Australian Capital Territory Supreme Court

    At [13], his Honour noted –

    ‘Expressions of reconciliation by victims of domestic violence are often a regrettable reflection of the dominance of the abuser.’
  • R v Stanley [2015] ACTSC 322 (12 October 2015) – Australian Capital Territory Supreme Court
    Refshauge ACJ at [71]-[74]: ‘The victim prepared a victim impact statement which the Crown Prosecutor read out. That can be important as it then is clear that the offender has heard what the victim has to say. It was difficult to hear that victim impact statement without experiencing some of the pain and hurt that the victim described. Courts know of the serious effects of such violence and invasions of the bodily integrity of victims but it is very valuable to hear the voices of the victims and understand how the hurt and damage can be different for each victim.’
  • 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’.
  • Guy v Anderson [2013] ACTSC 5 (14 January 2013) – Australian Capital Territory Supreme Court

    Refshauge J at [78]-[79]: ‘I also accept that the fact that the complainant and Mr Guy have reconciled needs to be approached cautiously. I did not detect any error in her Honour’s approach to this issue which, in fact, she hardly mentioned. Forgiveness by victims of domestic violence offences is highly problematic and must be treated with considerable caution for the reasons outlined by Simpson J in R v Glen [1994] NSWCCA 1 (19 December 1994) at 8. As her Honour said, “the victim’s attitude to sentencing … was not a matter which should have influenced the sentencing decision.” See also R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 183–4; [37]; R v Burton [2008] NSWCCA 128 at [102]–[105].

    ‘In Shaw v The Queen [2008] NSWCCA 58, Fullerton J, with whom McClellan CJ at CL and Grove J agreed, confirmed that approach (at [27]) but did point out (at [45]) that the reconciliation of the complainant and the offender (as opposed to her forgiveness) can be relevant as to prospects of rehabilitation. That is also clearly relevant here’.
  • Talukder v Dunbar [2009] ACTSC 42 (16 April 2009) – Australian Capital Territory Supreme Court
    Refshauge J at [82]: ‘In my view, there is a great danger in putting a victim of domestic violence in the position where they are seen to have some power to influence a sentence. This is often likely to be an intolerable choice between the bonds of affection which often persist despite the violence and their need for protection against recurrence and for the offender to be held accountable’.
  • R v Quach [2002] NSWCCA 173 (15 May 2002) – New South Wales Court of Criminal Appeal
    O’Keefe J at [28]: ‘The fact that he expressed contrition to his wife and that she said that she forgave him did not detract from the duty of the judge to impose a proper sentence. Her views in relation to the contrition of the Applicant, as opposed to what he said to her, do not seem to have been tested. Furthermore, even the stated acceptance by the victim of her acceptance of her attacker's contrition does not bind the court, nor does it detract from the need to give proper weight to the principle of general deterrence, Regina v Kanj [2000] NSWCCA 408, a principle that is important in cases of domestic violence (Regina v Green [2001] NSWCCA 258; Regina v Glen [1994] NSWCCA unreported 19 December 1994). Furthermore, the fact that a victim may forgive her attacker is not determinative. Indeed, its weight in relation to general deterrence will be a variable depending on the offence and the circumstances. It is a matter for judgment by the sentencing judge’.
  • R v Glen [1994] NSWCCA 1 (19 December 1994) – New South Wales Court of Criminal Appeal

    Simpson J: ‘In my opinion, exceptional caution should be exercised in the receipt, and the use, of evidence of that kind [general evidence of forgiveness and desire that the assailant/ partner not be imprisoned] in cases that fall within the general description of domestic violence offences, of which this case is one. It is a fact known to the courts and to the community that victims of domestic violence frequently, and clearly contrary to their own interests and welfare, forgive their attackers. It is said, and has been said so often and for so long as to be almost notorious, that it was this pattern of post offence forgiveness, accompanied by apparent remorse or contrition on the part of the offender, that prevented the prosecution of such offenders. In turn, it appeared that the victim of domestic violence was in a class different to the rest of the community insofar as the protection of the law was concerned. Domestic violence was not seen as a crime which attracted the sanction of the law in the same way or to the same extent as other crimes, whether or not of violence. The perpetrator of domestic violence was relatively safe to commit crimes with impunity, at least provided he or she (and, in the cases that have to date come before the courts, it has almost invariably been he) could attain the victim's forgiveness.

    ‘There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

    ‘For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim's word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.

    ‘The second reason of principle for treating with extreme caution the evidence of the forgiveness of the victim in the circumstances of this case is that the legislature has, since 1982, made clear its intention that special considerations apply to offences of domestic violence’.
  • R v Kershaw [2005] NSWCCA 56 (1 March 2005) – New South Wales Court of Criminal Appeal
    Bryson JA at [24]: ‘In cases involving domestic violence it happens from time to time that a complainant is shown to have a forgiving and optimistic attitude about violence in the relationship which it is difficult for others to understand or share. The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence. Cf R v. Glen (unreported, NSWCCA, 19 December 1994) per Simpson J’.
  • Walker v Verity [2010] NTSC 68 (7 December 2010) – Northern Territory Supreme Court
    Barr J at [40]-[41]: ‘I accept the respondent’s submission that in domestic violence cases such as the present, the importance of general deterrence may well override any relevance that evidence of forgiveness might have: R v Rowe; that in cases involving domestic violence, the sentencing process is not and should not be in the hands of complainant victims; and that the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence: Regina v Kershaw. In my opinion those statements of principle are equally applicable here, where the victim’s attitude was not one of forgiveness as such, but rather one of claimed insight into the appellant’s alcoholism, leading to her belief as to the need for a non-custodial disposition’.
  • R v Murray [2014] QCA 160 (18 July 2014) – Queensland Court of Appeal
    McMurdo P at [35]: ‘The offence was a serious example of grievous bodily harm in a domestic violence situation. It required a deterrent sentence, both generally and personally. His recidivism also made the protection of those with whom he forms intimate relationships a relevant factor in sentencing. The fact that the young Ms Coolwell, the victim of her abusive relationship with the applicant, was a reluctant complainant is not a mitigating feature. The only matters in his favour were his guilty plea and his dysfunctional background’.
  • Commissioner of Police v DGM [2016] QDC 022 (15/3279) Kingham DCJ 22 February 2016 – District Court of Queensland

    Kingham DCJ at [33]-[35]: ‘On appeal, the prosecutor submitted the sentencing Magistrate placed too much weight on this factor. Ongoing support of the victim is often a feature of domestic violence and can be associated with repeat offending against that victim.

    ‘Courts in Queensland and in other states of Australia, have recognised the need to approach submissions about reconciliation with real caution, because of the particular features of domestic and family violence. The fact that a victim is a reluctant complainant is not a mitigating factor (R v Murray [2014] QCA 160 at [35]). Likewise, reconciliation after the victim has complained ought not mitigate the sentence.

    ‘There may be cases in which reconciliation is relevant to an offender’s prospects of rehabilitation (Shaw v The Queen [2008] NSWCCA 58). However, that comes from the offender’s conduct, not the victim’s forgiveness. The nature of the relationship means victims may, contrary to their own welfare, forgive their attacker. That does not reduce the risk posed by the offender and, depending on the dynamics in a particular relationship, it could well exacerbate the risk. Necessarily, prospects of rehabilitation must be assessed by reference to the offender’s attitude and conduct, not the victim’s.

    ‘Even if the complainant’s support for Mr DGM is relevant, it is only one factor to be considered on sentence (R v O’Neill [2006] QCA 383 at p.6). Denunciation and deterrence are the dominant considerations on sentence for such offences (R v King [2006] QCA 466 at [18]; R v Rowe (1996) 89 A Crim R 467 (3 October 1996); Pasinis v R [2014] VSCA 97 at [15]; Guy v Anderson [2013] ACTSC 5 at [78]’.
  • Craill v Police [2016] SASC 168 (4 November 2016) – Supreme Court of South Australia

    Stanley J at [33], [36]: ‘While the attitude of the victim to an offence is not an irrelevant factor in sentencing (Coulthard v Kennedy (1992) 60 A Crim R 415), that attitude cannot be determinative of what constitutes an appropriate sentence. Moreover, this principle must be applied with considerable caution in cases of domestic violence.

    ‘The reason for such caution is obvious. In situations of domestic violence a victim’s motivation for advocating a particular penalty is often influenced by their ongoing relationship with the defendant and an unhealthy relationship of dependency between them. Their attitude is often influenced by apprehension about the consequences for them in the future given a continuing relationship with the defendant. This attitude frequently fails to reflect what is in their best interests and what the court might consider appropriate in all the circumstances. It would be contrary to sound sentencing practice to place victims of domestic violence in the position where they hold, or appear to hold, the keys to the offender’s release. To place victims in that position is to impose on them a burden they ought not be required to bear (R v Fadah [1999] NSWCCA 267 at [26])’.
  • Director of Public Prosecutions (Acting) v J C N [2015] TASFC 13 (27 November 2015)– Supreme Court of Tasmania

    Pearce J at [18], [20]: ‘Thus, because the respondent is charged with family violence offences, he is not to be granted bail unless he satisfies this Court that his release on bail would not be likely to adversely affect the safety, wellbeing and interests of the complainant and her children. The Act thereby creates a presumption against bail: Re S [2005] TASSC 89; (2005) 157 A Crim R 451. The onus is on the respondent to displace the presumption: Olsen v State of Tasmania [2005] TASSC 40.

    ‘The respondent also deposes, in a recent affidavit, that the complainant "is not afraid of my release". What is to be conveyed by that proposition is not entirely clear. It may mean simply that the complainant is "not afraid". It may also be intended to carry an inference that the complainant supports the respondent's release on bail. In the absence of evidence from the complainant, it is not possible to make findings about such matters, but some comments can be made. The response to family violence is often complex. Family violence offences are not uncommonly accompanied by support of a perpetrator by a victim and reluctance on the part of the victim to assist a criminal prosecution. That is so for a range of possible factors including fear and a wish to preserve relationships, even dysfunctional and violent ones, for the sake of loyalty, affection, companionship, economic and domestic support. Sometimes those motivations are misguided but persist nevertheless. As a result, victims sometimes act in a way that seems to an objective observer to be incongruous and difficult to understand. In such cases a court has a duty to consider the interests of persons who may be affected by family violence and, if necessary, act to protect them. By doing so it may sometimes act contrary to the wishes of an affected person. None of these comments is intended to suggest that the complainant in this case supports the respondent's application for bail, or that she does not and will not support his prosecution. Rather, it is to indicate that, in my assessment of this application, whether the complainant is afraid of the respondent, whether she supports the grant of bail or whether she instigated or acquiesced in the previous breaches, are considerations of little weight. The task of this Court is to consider the safety, wellbeing and interests of the complainant and her children in the particular circumstances of this case’.
  • Hester v The Queen [2007] VSCA 298 (29 November 2007) – Victorian Court of Appeal
    Neave JA at [27]: ‘It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue, many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in R v Glen that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution’.
  • R v Sa [2004] VSCA 182 (7 October 2004) – Victorian Court of Appeal

    Eames JA at [38]-[40]: ‘The statement of his Honour that the attitude of the victim could not "govern" the sentencing approach was consistent with the principles stated in Skura. In the present case, however, there was good reason why the judge would be cautious in evaluating the weight to be given to the evidence of the victim. In the first place, he was not the only victim of the appellant's crime; the two children also witnessed what must have been a horrifying incident, although there was no evidence of any long lasting adverse effects on the children. Crimes of violence frequently create alarm and distress to people other than the immediate victims, and in assessing the need for general deterrence a sentencing judge must have regard to the impact of crime more broadly than merely upon the immediate victim.

    ‘An additional reason for being cautious about the weight to be given to the evidence of the victim related to the nature of Tofa's evidence. One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.

    ‘In the present case, the victim was himself in a difficult position among other members of the Samoan community, and his acceptance of the apology might have been motivated by a range of considerations’.
  • R v Skura [2004] VSCA 53 (7 April 2004) – Victorian Court of Appeal

    Eames JA at [12]-[13]: ‘This Court has often acknowledged that the introduction of victim impact statements has served an important purpose of ensuring that sentencing judges have a full appreciation of the consequences of criminal conduct to the victims of the crimes, thereby ensuring that judges properly weigh the factors relevant to victims which must be considered by virtue of s.5 of the Sentencing Act 1991. The courts have also warned that the victim impact statements should not be misused so as to produce a sentence which is unfair, and that an articulate or emotional victim impact statement could not justify a sentence being imposed which was not just in all the circumstances.

    ‘Whilst judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion it is undoubtedly the case that consideration of victim impact statements in many instances would have the effect of producing a more severe sentence than a judge might, at first, have thought appropriate to the circumstances. If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence’.
  • The State of Western Australia v Cheeseman [2011] WASCA 15 (19 January 2011) – Supreme Court of Western Australia (Court of Appeal)

    McLure P at [2]-[3]: ‘The sentencing judge said: ‘The decision to suspend or not is difficult but you are I think a person in whom I can grant suspension, and primarily because of your acceptance of responsibility in these unique circumstances in which there was a matrimonial breakdown, if you like, that you have reconciled, that your partner wants you back, that there is a child of your union and that you are a person who can get employment readily within the community and thereby if the system can rehabilitate you to assume full responsibility for your family through looking after them financially and by getting back into work, then rehabilitation perhaps outweighs the requirement for you to serve the term (ts 20)’.

    ‘The circumstances to which the sentencing judge referred are neither unique nor mitigatory. The hallmark of domestic or relationship related violence is the readiness of many victims to return to, or remain in, a relationship with the perpetrator of the violence. The otherwise appropriate penalty should not be reduced because there is a return to the status quo that existed prior to the breakdown of the relationship which precipitated the violence. It is also circular to rely on the return to the relationship status quo as the route to rehabilitation. Moreover, the emphasis on the domestic context marginalises the actual and threatened violence inflicted by the respondent on C’.