Sentencing considerations - breaches of protection orders

  • Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.

    This report presents a comprehensive review of legal responses to Family Violence in Australia. The commissions received many submissions. Chapter 12 discussed penalties and sentencing for breach of protection orders. The report notes that: ‘The overwhelming majority of stakeholders that addressed this issue were in favour of sanctions that could help to change the behaviour of those who commit violence. Therefore, there was support for ‘perpetrator programs’ such as violence and drug and alcohol rehabilitation programs; probation with special conditions, such as attending ‘perpetrators’ courses or counselling’; men’s behaviour programs; psychiatric assessment and treatment; anger management programs; and educational programs on family violence with ‘therapeutic interventions’’ (at [12.172].) Other options raised (as an alternative to imprisonment) included community service orders (provided the work associated with the penalty is ‘meaningful, constructive and rehabilitative’) (at [12.173])

    The underlying issue in Chapters 13 and 14 is the way in which the criminal law accounts for the nature and dynamics of family violence. Criminal laws are traditionally perceived as ‘incident-based’, in that they are focused upon discrete acts forming the basis of individual offences. As identified in Chapter 5, family violence is characterised by patterns of controlling, coercive or dominating behaviour and may include both physical and non-physical violence [13.2].
  • Sentencing Advisory Council (Tas), Sentencing of Adult Family Violence Offenders: Final report No.5 (2015).

    This Report provides advice on the sentencing of adult family violence offenders in Tasmania and includes consideration of the range and adequacy of sentencing options and support programs available and the role of specialist family violence lists or courts in dealing with family violence matters. Included in the terms of reference: (2) Sentencing practices in relation to family violence offences across Tasmania; (3) Sentencing standards for family violence offences in comparison to similar offences outside the family violence context; (4) the range and adequacy of sentencing options and support programs available to the courts when sentencing family violence matters

    3.2 SENTENCING PRINCIPLES AND SENTENCING ORDERS

    On a finding or plea of guilt the sentencing officer’s task is informed by the aims and purposes of sentencing. In Tasmania, these aims (replicating recognised common law objectives) are set out in s 3 of the Sentencing Act 1997and include punishment, deterrence, prevention, denunciation and rehabilitation. The decision on sentence is also shaped by a number of other general common law sentencing principles including the central principle of proportionality, which requires that the punishment imposed be commensurate with the blameworthiness of the offender.

    When sentencing for a family violence offence an additional consideration is the fact that the legislation suggests that family violence offences need to be regarded seriously and that victim safety may be a more significant factor in the sentencing exercise. The objects clause of the FVA states that the ‘safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations.’

    4.1 COMPARATIVE SENTENCING STANDARDS

    This section of the Report examines sentencing standards by comparing sentences imposed where an offence is committed in the context of family violence with those imposed for the same offence committed in a non-family violence context. The most common of these (and the only one for which sufficient data exists to enable a meaningful comparison) is the offence of assault contrary to the Police Offences Act, 1935.

    5.2 DOMESTIC PROGRAMS

    All Australian States and Territories have rehabilitation programs as part of their response to family violence but not all have made legislative provision for referral to such programs. Some of the key differences in the programs are: when a treatment order may be made; whether a counselling order is mandatory, voluntary, or made in connection with sentencing; the type of treatment available; and the effect of a counselling order.
  • Sentencing Advisory Council (Vic), Sentencing Practices for Breach of Family violence Intervention Orders: Final Report (2009).

    This is a report compiled by the Sentencing Advisory Council from Victoria on Intervention Orders in Victoria: their usage, purpose, efficacy and, most importantly, the penalties awarded for their breach. The Council compiled the report by reviewing relevant literature on family data, analysing data on sentencing and conducting new research by consulting those involved in the sentencing process (magistrates, court staff, Victoria Police, community legal centre representatives, family violence service providers, defence lawyers, workers from men’s family violence programs and a family violence victims’ support group). The report found:

    • The sanctions imposed during sentencing for breach of a family violence order were considered by most stakeholders to be far too lenient (viii)
    • Fines are inappropriate sentences for breach of intervention orders (viii) as they can punish the victim as well as the offender (ix)
    ‘Some sentences which are intended to punish the offender may fail to achieve that purpose. For example, the most common sentencing disposition for breaching an intervention order is a fine. The purpose of a fine is generally said to be to punish the offender and act as a deterrent to future offending by the offender and others. However, the dynamics of family violence mean that fines can punish the victim(s) as much or more than the offender. Payment of the fine by the offender may affect his ability to provide financial support to the victim and her family. The offender may even coerce the victim into paying the fine.’ (at [6.12]).
  • Sentencing Advisory Council (Vic), Sentencing for Contravention of Family Violence Intervention Orders and Safety Notices: Second Monitoring Report (2015).

    This report is a continuation of previous monitoring work, examining sentencing patterns over yearly periods from 2009 and 2015 for offences involving contravention of a family violence intervention order (FVIO) or a family violence safety notice (FVSN) made under the Family Violence Protection Act 2008 (Vic). In particular, this report examines sentencing for the offences of:

    • contravention of an FVIO;
    • contravention of an FVSN;
    • contravention of an FVIO intending to cause harm or fear for safety;
    • contravention of an FVSN intending to cause harm or fear for safety; and
    • persistent contravention of notices and orders.
    In terms of sentencing for FVIO and FVSN contravention, there was an increase in the use of imprisonment and community sentences (including community correction orders (CCOs), following the phased abolition of suspended sentences.
  • Sentencing Advisory Council (Vic), Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (2017).

    This report examines whether ‘swift, certain and fair’ (‘SCF’) approaches towards sentencing of family violence offenders are desirable in Victoria (p ix). SCF approaches include:

    • targeting offenders serving their sentence in the community;
    • monitoring compliance;
    • responding to contraventions within 72 hours; and
    • responding to contraventions with fixed (usually custodial) sentences, with lengths of between a few hours to a month (p x).

    The report concludes that SCF approaches towards sentencing of family violence offenders are not desirable in Victoria because, for example:

    • there is an absence of evidence for the effectiveness of SCF approaches to family violence offences (see [3.15]-[3.24]);
    • the potential risks to victims (see [3.51]-[3.61]);
    • the potential for disproportionate impact on particular groups, especially Aboriginal and Torres Strait Islander people (see [3.117]-[3.129]); and
    • overwhelming stakeholder opposition (p xi).
    The report recommends instead that judicial officers make increased use of judicial monitoring conditions in community correction orders (CCO) (Recommendation 5; see [4.56]). The report notes that the Law Institute of Victoria, in its submission, identified judicial monitoring as one of the ‘most promising approaches in reducing family violence offending’ (see [4.27]). Data from the Victorian Magistrates Court reveals that a judicial monitoring condition was attached in 14% of cases (510 of 3,560) where a family violence offender was sentenced to a CCO during the 2015-16 financial year ([4.34]). It is argued that judicial monitoring hearings, in front of the same judicial officer, help foster a sense of accountability in offenders ([4.104])
  • Weatherburn, Don and Sara Rahman, ‘General offending by domestic violence offenders’ Crime and Justice Bulletin (Contemporary Issues in Crime and Justice, Number 215, 2018).
    The purpose of the paper is to assess 1) the extent to which domestic violence (DV) offenders specialise in DV offending; 2) the types and frequency of involvement in non-DV offences by DV offenders; and 3) the similarities and differences between DV assault offenders and non-DV assault offenders. The first two questions were answered by examining non-DV offending by offenders convicted in New South Wales of a DV offence between 2008 and 2017. To address the third question, classification techniques were employed to determine how well DV assault offenders and non-DV assault offenders can be separated on the basis of demographic and criminal justice variables. Results showed that DV offenders committed more than 2.5 times as many non-DV offences as DV offences. The most common non-DV offences committed by the DV offenders were traffic offences (27.99%), theft offences (14.67%) and drug offences (12.31%). There was very little difference between DV and non-DV assault offenders in terms of their demographic and criminal justice profile. The findings, therefore, suggest that most DV offenders do not specialise in DV offending, but a significant proportion of convicted DV offenders do. The fact that most DV offenders commit other offences is significant because measures aimed at deterring and incapacitating them may have consequential benefits in relation to other types of crime (page 8).