Listening to victims

NSW

  • Judicial Commission of NSW, Equality before the Law: Bench Book (2018).
    This bench book discusses the experience of court processes of a range of vulnerable groups (Aboriginal people, people from CALD backgrounds, people of a particular religious affiliation, people with disabilities, children and young people, women, GLBTIQ people, and older people). The discussion is mostly not specific to proceedings relating to domestic and family violence matters, however the practical guidance provided to judicial officers is likely to be useful in those proceedings, including considerations of the victim’s circumstances and vulnerabilities, and the impact of the behaviour, crime, decision and/or sentence on the victim.
  • Judicial Commission of NSW, Sentencing Bench Book 2015.

    [See 63.500] Domestic Violence Offences

    ‘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.’

    [12-850] The relevance of the attitude of the victim — vengeance or forgiveness: Domestic violence

    In R v Glen [1994] NSWCCA 1 (19 December 1994), Simpson J stressed the importance, particularly in domestic violence cases, of general deterrence. Her Honour emphasised that:

    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.

    R v Glen was quoted at length and with approval in R v Burton [2008] NSWCCA 128 at [103]. Justice Johnson affirmed the need for “… caution where a victim of a domestic violence offence expresses forgiveness and urges imposition of a lenient sentence for the offender” at [105].

    In R v Dunn (2004) 144 A Crim R 180, Adams J (with whom Ipp JA and Sully J agreed) explained 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.

    In R v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102, Howie J, citing R v Bradford (unrep, 6/5/88, NSWCCA), noted at [83]: that there may be the comparatively rare cases where forgiveness of the accused by the victim may be a relevant fact. Most cases, where this issue has been considered, have been in the context of domestic violence.

    In R v Kershaw [2005] NSWCCA 56, Bryson JA said 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.

    In Shaw v R [2008] NSWCCA 58, the court at [27] held that the judge did not err in being cautious about giving any weight to those aspects of the victim’s statutory declaration where she addressed her own responsibility for the deterioration in the relationship, her desire to withdraw her statement to police and her desire for her family to be reunited. This was an approach open to his Honour since it is the experience of sentencing courts that victims of domestic violence may be actively pressured to forgive their assailants or compelled for other reasons to show a preparedness to forgive them.’

    Attitude of victim’s relatives

    In R v Dawes [2004] NSWCCA 363, a case where a mother, suffering a major depressive illness, killed her autistic son, Dunford J noted at [30]: In his Victim Impact Statement read to the District Court, the respondent’s husband referred to what a good mother she had been to Jason over the years, he asked for leniency for her and said that he could see no gain to the community or personal satisfaction in her being sent to prison. It would appear that his Honour took his attitude into account when sentencing the respondent, and in so far as he did so, he was in error, as the attitude of the victim: R v Palu (2002) 134 A Crim R 174 at [37], or in the case of homicide, the victim’s family: R v Previtera (1997) 94 A Crim R 76, is not relevant to the proper exercise of the sentencing discretion for the reasons explained in those cases. For the same reasons, the apparent change of attitude of the respondent’s husband is not a matter which this court can take into account in considering the appeal: see also R v Newman [2004] NSWCCA 102 at [79] to [86] and cases there cited.

    The forgiveness of the offender by the victim’s relatives should not be a factor taken into account in determining the sentence to be imposed: R v Begbie (2001) 124 A Crim R 300 per Sully J at [57]–[59]. The victim’s attitude cannot over-reach the need for strong denunciation and general deterrence in a case involving serious objective circumstances: per Mason P at [43].

Vic

  • Judicial College of Victoria, Family Violence Bench Book (2014).
    4.2 discusses criminal offences in the context of family violence, including the relevance of the attitude of the victim.
  • Judicial College of Victoria, Victorian Sentencing Manual (2015).

    This manual provides comprehensive overview on sentencing generally in Victoria.

WA

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

    Note: Chapter 10 Women and Chapter 13 Family and Domestic Violence are currently under review. Until revision is completed, the first edition chapter 10 and the first edition chapter 13 apply. The relevant parts of the following text are based on these first edition chapters.

    See general [10.3] Practical Considerations.

    See also [10.3.6] and [13.3.8] Sentencing other decisions and judgment writing

    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
    • Consider whether to quote from a victim impact statement in court.

International

  • Neilson, Linda C, Domestic Violence Electronic Bench Book (National Judicial Institute, 2017).
    See Section 5.4.2: What if the targeted person has forgiven the past abuse and violence?: ‘[d]omestic violence is a cumulative phenomenon… The fact that a targeted person has forgiven or reconciled does not erase DV or the accumulating damage it causes. Forgiveness does not erase the effects on children or the association between domestic violence and parenting deficits. In other words, evidence of past domestic violence, forgiven or not, is both necessary and pertinent to decisions about adult safety, risk assessment, and child custody and access.’