This list of considerations is adapted from the Guiding Principles for Sentencing Contraventions of Family Violence Intervention Orders prepared by the Sentencing Advisory Council (Victoria) 2009 [Sentencing Advisory Council Vic 2009] and recommended by the Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010 (rec. 12.8) [ALRC/NSWLRC 2010].
Sentencing a breach of a protection order can be an extremely complex task. Subject to legislation and relevant case law that requires a specific approach (see Table 1 below), in sentencing an offender for breach of a protection order, the following matters may be important to consider:
Some sentences which are intended to punish the offender may have an unintended consequence. The dynamics of domestic and family violence may mean the imposition of a fine can also punish the victim. Sentences which are structured to ensure that it is the offender who is punished may be more effective in achieving this sentencing purpose (for example orders that require the offender comply with conditions such as completing community work).
The nature of the breach of the protection order and its impact on the victim are important factors.
When sentencing for a breach of a protection order regard should be had to the fact that the damage caused to victims who have suffered years of domestic and family violence may make them particularly vulnerable to conduct that in another context would seem relatively innocuous.
Breaches not involving physical violence can have a significant impact on the victim and should not necessarily be treated as less serious than breaches involving physical violence.
Where an offence has taken place in or in the vicinity of the victim’s home, thereby depriving the victim of any feeling of safety or sanctuary, the breach may be regarded as more serious.Consider whether, if there is no victim impact statement, the judicial officer should enquire as to whether the victim has been given the opportunity to make such a statement. It is however important not to insist on the provision of a victim impact statement and judicial officers should not underestimate the effect of the breach on the victim in the absence of a victim impact statement. Victims may feel it is not safe for them to provide a victim impact statement (see (iv) below.)
In NSW the attitude of the victim is not to be taken into account.In all other jurisdictions generally, the views of the victim should not significantly influence the appropriate sentence for a particular offence. Because victims of family violence may be placed in danger of further violence if they are regarded by the perpetrator as being responsible for the sentence, a court should be mindful as to whether the victim has provided any views on sentence free of pressure or coercion. This may require some consideration of the dynamics of the relationship between the victim and the offender.
It may be relevant that the conditions of the order were breached following contact initiated by the victim. However, in assessing the degree to which this may mitigate the seriousness of the offence it is important to consider the history of the relationship between the parties, the nature of the contact and the victim’s motivation in making contact (and in particular whether the victim was acting under any pressure or coercion). This may require some consideration of the dynamics of the relationship between the victim and the offender.Some victims have reported that they feel safer if they maintain contact with the offender so they can monitor their level of risk.
In considering the offender’s culpability in a breach of protection order offence, the court should consider whether the offence was committed intentionally, recklessly or negligently and the offender’s level of understanding of the order.Generally, the fact that the offender was not present in court when the original order was made and the consequences of breach explained should not mitigate culpability. However, there may be situations in which the offender has not properly understood the conditions of the order (for example, where the offender has poor English skills, an intellectual disability or a mental illness).
Where the facts which formed the basis of both charges are the same, consideration must be given to the question of ‘double punishment’ (see Table 2 below).
|Australian Capital Territory||
section 34(2) Crimes (Sentencing) Act 2005 (ACT)
section 43 Family Violence Act 2016 (ACT)
Alchin v McInerney  ACTSC 300 (25 September 2015)
|New South Wales||
section 14(4) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Judicial Commission of NSW, Sentencing Bench Book (2018) [NSW Sentencing Bench Book 2018]
Browning v The Queen  NSWCCA 147 (17 June 2015)
section 121(7) Domestic and Family Violence Act 2007 (NT)
Bush v Lyons  NTSC 20 (28 April 2018)
section 9(10A) Penalties and Sentences Act 1992 (Qld)
sections 73, 178-179 Domestic and Family Violence Protection Act 2012 (Qld)
Queensland Domestic and Family Violence Protection Act (2012) Bench Book see section 19.9 [DFV Protection Act 2012 Bench Book 2018]
Section 31 Intervention Orders (Prevention of Abuse) Act (2009) SA
R v Fox  SASC 5 (3 February 2017)
section 35 Family Violence Act 2004 (Tas)
Maingay v Seabourne  TASSC 67 (19 August 2009 ) -
sections 37, 37A, 123,123A Family Violence Protection Act (2008) Vic.
R v Cotham  VSCA 111 (17 November 1998)
Sections 61-61C Restraining Orders Act (1997) WA
Sections 67A, 76A, 84CA, 124D-124G Sentencing Act (1995) WA
Bernard v Williams  WASC 182 (30 April 2015)
|Australian Capital Territory||Roberts v Smorhun  ACTSC 218 (1 November 2013)|
|New South Wales||See Sentencing Bench Book (NSW) at [63-518] [NSW Sentencing Bench Book 2018]|
|Northern Territory||Andalong v O’Neill  NTSC 77 (19 October 2017)|
Queensland Domestic and Family Violence Protection Act (2012) Bench Book see [20.8] [DFV Protection Act 2012 Bench Book 2018];
R v Dibble; ex parte Attorney-General (Qld)  QCA 8 (11 February 2014)
R v MKW  QDC 300 (18 June 2014)
Mullins v Police  SASC 148 (20 September 2013)
R v McMutrie  SASC 253 (8 August 2002)
|Tasmania||Rae v State of Tasmania  TASCCA 8 (31 May 2010)|
|Victoria||See Family Violence Bench Book (Victoria) at [18.104.22.168] [Vic FV Bench Book 2014]|
Sakkers v Thornton  WASC 175 (22 June 2009)
Musgrove v Millard  WASC 60 (22 February 2012)
Relevant sections of the above cases are extracted at 9.3.1 Sentencing considerations - breaches of protection orders - Cases
See also 9.3 Sentencing:
|Table 1:||Approaches to sentencing where offences committed in the context domestic and family violence.|
|Table 2:||Where an offence is committed in the context of domestic and family violence and breaches an existing protection order.|
Amendments to the Sentencing Act (1995) WA that allow courts to declare persons convicted of multiple family violence offences (including an offence against section61(1)or 61(1A) of the Restraining Orders Act 1997 for breach of an FVRO or VRO) as serial domestic violence offenders (see ss124D-124G) and to allow electronic monitoring of convicted domestic violence offenders while they are subject to orders or suspended terms of imprisonment (see ss 67A, 76A, 84CA) are now in force.