Sentencing considerations - breaches of protection orders

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.

  • Andalong v O’Neill [2017] NTSC 77 (19 October 2017) – Northern Territory Supreme Court
    The question is whether the elements of the offences charged are identical, or substantially the same in the sense that all the elements of one offence are wholly included in the other ([23])
  • R v MKW [2017] [2014] QDC 300 (18 June 2014) – Queensland District Court
    The crucial issue was whether the original prosecution for the breach offence against the Act constituted a ‘proceeding’ under that act. If it did, s 138(3)(a) would apply so that the prosecution for the breach offence would not affect any other proceeding against the applicant arising out of the same conduct.
  • Mullins v Police [2013] SASC 148 (20 September 2013) – South Australian Supreme Court
    I accept the submission of counsel for the respondent that if, say, an assault is performed in circumstances where the offender knows that the assault is also a contravention of an Intervention Order, then that knowledge is an aggravating feature of the offending and should be taken into account on sentencing without there being a separate charge of contravening an Intervention Order.
  • Musgrove v Millard [2012] WASC 60 (22 February 2012) – Western Australian Supreme Court
    38 However, on this occasion, I do not consider that it is necessary to resolve the controversy over whether or not s 11 applies directly in the circumstances of this case. In view of the complexities involved and as there is a satisfactory alternative route to the conclusion of this appeal, it seems desirable to leave such contentious issues to another occasion when it might be essential to resolve them. This is because it is acknowledged by counsel for the respondent that there is an associated principle, often termed the 'common elements principle', which applies when two offences of which an offender stands convicted contain common elements so that it would be wrong to punish that offender twice for the commission of the elements that are common: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40] and Eves v The State of Western Australia [2008] WASCA 7 [5], [10] (Steytler P) and [27] (McLure JA).
  • Khan v Evans [2013] ACTSC 211 (4 October 2013) – Australian Capital Territory Supreme Court
    Refshauge ACJ at [52]: ‘While the offence against Mr Khan’s father could also be described as domestic violence, the fact is that the interim personal protection order and the personal protection orders are there to protect the complainant from what might be described as domestic violence in its widest sense. Therefore, such orders are an important component of the criminal justice system’s response to domestic violence. Breaches of personal protection orders are serious matters which the courts must treat seriously to ensure the integrity of the system which the protection orders are intended to put in to effect’.
  • Sakkers v Thornton [2009] WASC 175 (22 June 2009) – Western Australian Supreme Court
    Section 11(1) of the Sentencing Act 1995 provides that a person is not to be sentenced twice on the same evidence. Simmonds J stated at [22] – ‘Here the offence of aggravated stalking was constituted by the course of conduct whose constituents were the 12 breaches of the violence restraining order. The sentences for the 12 breaches of violence restraining order, globally, are the same as the sentence for the aggravated stalking.’ As such, the global sentence for the breach offences was set aside.
  • R v McMutrie [2002] SASC 253 (8 August 2002) – South Australian Supreme Court
    On appeal Counsel for the Crown accepted that there was a risk of a miscarriage of justice. It was acknowledged that the jury may have relied on the one set of facts as the basis for both convictions. It was accepted that if this had happened the appellant was entitled to a defence of autrefois acquit to the charge possessing a knife with intent. The Crown's concession was appropriate. The conviction on count 3 must be set aside.[11]
  • Jeffries v The Queen [2008] NSWCCA 144 (26 June 2008) – New South Wales Court of Criminal Appeal
    Johnson J at [91]: ‘Significant aggravating factors existed, given that the offences were committed whilst the Applicant was on bail for an offence of violence committed against AW and was subject to an apprehended domestic violence order intended to control his conduct towards his domestic partner. The present offences were committed in flagrant breach of both forms of conditional liberty, which were intended to protect AW’.
  • Suksa-Ngacharoen v Regina [2018] NSWCCA 142 (10 August 2018) - New South Wales Court of Criminal Appeal

    Wilson J said at [132]:

    ‘The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship… Conduct which involves deliberate disobedience of a court order must be treated as serious, and should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle as set out in Pearce v The Queen (1989) 194 CLR 610.’
  • R v MJ [2016] NSWDC 272 (12 May 2016) – New South Wales District Court
    Berman J at [42]: ‘Despite the rehabilitation that the offender appears to have achieved leading up to the jury’s verdict, there still is a need for specific deterrence. The offender’s history, and it is a history, of acting in a violent way towards partners is of great concern. True it is that he has not always done that; indeed, some of the people with whom he was in relationships with have spoken positively about him in references tendered to the Court today. But much more important than specific deterrence is, of course, general deterrence. Again, I go back to what I said at the beginning of these remarks on sentence. Offences such as these cause enormous harm, both to the individual victims concerned and to the community generally. Offenders who commit crimes such as I have described, particularly after they have been subject to apprehended violence orders, put in place to protect their partners from precisely such conduct, need to be given in sentences which will deter others who may be tempted to act in a similar way. Most fundamentally in assessing the relevant sentence to impose upon the offender is, of course, the objective gravity of what he has done’.
  • Craill v Police [2016] SASC 168 (4 November 2016) – Supreme Court of South Australia
    Stanley J at [28]: ‘In R v McMutrie this Court said that a breach of a restraining order is a matter of particular gravity. The object of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is the prevention of domestic and non-domestic abuse, and the exposure of children to the effects of such abuse. The principal instrument for achieving this objective is the making of intervention orders. The protective objects of the Act can only be achieved if courts are scrupulous in doing what they can to ensure that persons who are subject to such orders comply with them. The repeated breaches of those orders by the appellant demonstrate a persistent, blatant and contumelious disregard for the orders and the authorities that impose them. Crimes of domestic violence are often occasions for the exercise, or attempted exercise, of power over the victim by the offender. Breaches of intervention orders can be occasions for the offender to intimidate the victim with an implied threat that such orders will not protect them. The courts must act to contradict this impression’.
  • Filiz v The Queen [2014] VSCA 212 (11 September 2014) – Victorian Court of Appeal

    Redlich JA at [21]-[23]: ‘Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner (Felicite v The Queen at [20]; DPP v Pasinis at [53]). Of particular significance is the fact that the applicant was already subject to a Family Violence Intervention Order. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection (Cotham v The Queen at [14]; DPP v Johnson at [38]-[49]).

    ‘At the oral hearing it was said that the complainant’s fear would have been greater if her home had been invaded by strangers seeking to steal personal property. It was suggested that the context of the offending affected its seriousness. We do not accept that these matters affect the objective gravity of the offences. The level of fear engendered by the applicant, in kicking in the locked bedroom door and proceeding to beat the victims with an iron rod, did not have to be evaluated according to such niceties. The attack the applicant launched upon his ex-partner was strongly suggestive of a desire to do her and her partner serious harm, and anybody in their position would have feared that such harm would occur. The complainant’s victim impact statement makes clear that the physical and emotional effects will be lasting.

    ‘It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners. In such circumstances, the submission that the complainant’s level of fear when being attacked by her ex-partner was less than it might have been if she had been attacked by a stranger should be rejected’.
  • Marrah v The Queen [2014] VSCA 119 (18 June 2014) – Victorian Court of Appeal
    Tate JA at [25]: ‘The gravity of the offending was aggravated by the fact that the applicant was at the time the subject of an intervention order, which he flagrantly disregarded. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship’.
  • DPP v Johnson [2011] VSCA 288 (23 September 2011) – Victorian Court of Appeal

    Neave JA at [4]-[5]: ‘All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats. Family violence is a serious problem in Australia. In 2004, it was reported that family violence is ‘the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years’.[1] Breach of intervention orders is relatively common.[2] In its Report on Breaching Intervention Orders, the Sentencing Advisory Council said that, between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year. Over a quarter of all intervention orders imposed were breached.

    ‘Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them.[3] As was recognised during parliamentary debates on the Family Violence Protection Bill 2008,[4] intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. The Victorian Law Reform Commission, in its report which ‘underpin[ned]’ many of the changes in the Bill,[5] observed: ‘The response to a breach of an intervention order is crucial to ensuring the intervention order system is effective in protecting family violence victims. If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike’’.
  • R v Cotham [1998] VSCA 111 (17 November 1998) – Victorian Court of Appeal
    Charles JA at [14]: ‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated’.
  • Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794 (21 December 2017) – Supreme Court of Victoria

    In relation to protection orders, Bell J stated at [11]:

    In the context of aggravation, I referred to the intervention order not for reasons of formality. To murder a person protected by a family violence intervention order is a very serious matter. Family violence intervention orders are not worthless pieces of paper. The general purpose of such an order is to provide legally enforceable protection for the safety of the individual, usually a woman at risk of violence from a man. The contravention in the present case is not separately charged but represents a seriously aggravating feature of the murder.
  • Dennis v Lanternier (No 2) [2017] WASC 5 (12 January 2017) – Supreme Court of Western Australia

    Jenkins J referred to the role of the Restraining Orders Act in deterring domestic violence at [152]:

    The long title of the Restraining Orders Act reflects Parliament's intention for the Act to provide for orders to 'restrain people from committing acts of family or domestic or personal violence by imposing restraints on their behaviour and activity'. In order for the Act to be effective, offenders must appreciate that if they breach a VRO they will receive a significant penalty. The community and the courts have [an] intolerance and abhorrence of violence and threatened violence in domestic and former domestic relationships. The penalties imposed for breaches of VROs must reflect that intolerance and abhorrence, in the hope that the penalties deter offenders and protect victims.
  • Wallam v Grosveld [2015] WASC 145 (24 April 2015) – Supreme Court of Western Australia
    Martin J at [78]: ‘Those significant statutory penalties speak loudly as to the seriousness of a breach of a restraining order and dictate how closely and carefully the underlying circumstances of such an offence must be assessed in every case. In the past there have, of course, been well referenced instances where terrible crimes of violence have been committed in the community against protected persons by individuals otherwise bound by a restraining order, but who chose to ignore it. Plainly, the statutory right to apply for a VRO is meant to assist the more vulnerable to protect themselves from violence, especially (but not solely) women who are the victims of domestic violence. Thus, issues of general and specific deterrence concerning offenders are more than usually important in this arena. To that end, I note a recent report canvassing some of these issues - Law Reform Commission of Western Australia, Enhancing Laws Concerning Family and Domestic Violence, Final Report (2014)’.
  • Lutley v Jacques [2010] WASC 78 (28 April 2010) – Supreme Court of Western Australia
    Simmonds J at [62]: ‘ The approach is one recognising that the Act is social legislation of the utmost importance as part of the legal response to domestic violence: Pillage v Coyne [2000] WASCA 135 [13] (Miller J); it is essential the courts ensure their orders are not ignored: Kenny v Lewis(Unreported, WASC, Library No 990113, 12 March 1999) (Kennedy J) 10; and violence restraining orders are notoriously difficult to enforce, and the need for general and individual deterrence will ordinarily outweigh subjective or other mitigating considerations: Dominik v Volpi [2004] WASCA 18 [80] (Roberts-Smith J)’.
  • Brown v Roe [2004] WASCA 210 (16 September 2004) – Supreme Court of Western Australia (Court of Appeal)

    Barker J at [42],[44],[46]: ‘It is plain from what the Magistrate said in his reasons that he held the view that the protected person had elected from time to time to enforce, at her discretion, the terms of the VRO. He said she used it as a "walking stick". It is not immediately apparent to me that this view is correct. Indeed, it appears to be a gratuitous comment. The explanation given by the protected person as to why, on some occasions, she tolerated the presence of the respondent at her home and, on other occasions, she did not, is quite understandable. In short, she has found it easier to attempt to manage the situation on many occasions when the respondent has called at her home unannounced or uninvited, but on other occasions when has become troublesome and she has invited him to leave, she has found it necessary to complain to the police and enforce the terms of the order.

    ‘It may be recognised that, in many circumstances, the continuing relationship between persons who were once in a close personal relationship will be strained, especially after a VRO has been granted by a Court. Nonetheless, a person who is bound by a VRO must take all appropriate steps to ensure that the terms of the order are complied with. It may well be that, on some occasions, by virtue of a course of conduct, a person bound by the order may feel entitled to approach physically or telephone a protected person. It may be that a prior course of conduct in some cases implies a consent to approach the protected person in that way, at least initially. But if the protected person makes it plain that she or he does not consent to that contact or that initial contact continuing, then it behoves the person bound by the order to back off and strictly comply with the order.

    ‘In my view, it is not appropriate for a Court, while a VRO is in place, effectively to suspend the operation of a VRO by taking the view that a person protected is inclined to use the VRO as a "walking stick", as the Magistrate in this case suggested’.