Sentencing Principles in Family Violence Offences - A Quick Guide

The following are the key principles applicable for sentencing offenders for crimes committed within the context of family violence:

• General deterrence is the most important consideration,

• The sentence must strongly denounce and punish family violence;

• Offending committed in breach of existing family violence orders is an aggravating factor that may require considerable weight to be accorded to specific deterrence;

• Offending committed in a domestic environment, where the victim is entitled to feel safe, is an aggravating feature; and

• Aggravated burglaries which include confrontation and violence, or threats of violence, should be viewed very seriously, whether the victim is a former domestic partner or some other person.

GENERAL DETERRENCE

In Pasinis v The Queen the court emphasised the importance of general deterrence in sentencing for family violence offences, stating:

“General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm”.

GUILTY PLEA FOR MULTIPLE OFFENCES

The offenders are entitled for a discount in sentencing if they enter a plea of guilty. Defence would raise this entitlement for their client on regular basis. However, in DPP v CPD 2, the Victorian Supreme Court has made it clear that:

The fact that a count is a representative count has a twofold relevance to sentencing. First, it is to be understood as the absence of a mitigating factor, in the sense that a plea of guilty to a representative count prevents the defendant from claiming ‘any leniency that might have been permitted on the basis that the offence was an isolated event’. Secondly, the sentencing court must look at the conduct represented by the count in order to judge the offending in its full context, ‘which is likely to bear upon such matters as the extent of culpability, need for specific deterrence and prospects of rehabilitation’.

It is important to make this submission on consolidated pleas where multiple offences of family violence have been alleged. In simple terms the ruling the court mirrors the course of conduct legislation where the absence of isolation of a particular offending makes the conduct aggravating.

BROKEN DOWN RELATIONSHIP: AGGRAVATING OR MITIGATING

It is common for defence counsels to raise the broken down relationship as a mitigating factor. However, in 2001, the VSCA in R v MFP held that a broken down relationship is potentially an aggravating factor as it has a consequence of placing the respondent in a privileged position in regards to the intimate knowledge of the spouse. The court held that:

They each know the everyday movements, the habits, the likes and dislikes, the fears and pleasures of their spouse, which might enable them not only to effect an attack more easily on their victim but also to devise the kinds of attack which could more seriously affect their spouse, not merely physically, but so as to cause mental anguish … The matter need not be examined any further, for in truth the advantages that he had, including that of surprise, justified the judge in holding that it was proper to view more seriously this attack occurring in the domestic context of this family.

It is also important to note that a broken down relationship affects both parties equally. If one of the parties decide to act on their impulses which may been triggered from the stress and anxieties of the broken relationship, the consequences for the other party automatically becomes aggravating.

BREACH OF INTERVENTION ORDERS

The courts across all jurisdictions in Australia treat the breaches on Intervention orders seriously. In 1998, in R v Cotham, the VSCA said:

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 it clear to the applicant and the broader community that such conduct will not be tolerated.

Intervention orders are commonly breached. Persistent breaches of Intervention orders make regular appearances on the bar tables across Victoria. The current sentencing statistics suggest that imprisonment is the most commonly used sentence by the courts to punish the persistent breaches on intervention orders. The magistrate’s court in Victoria has dealt with 29.7 % of matters involving persistent breaches by imposing a term of imprisonment followed by the Community Corrections Orders in 25.5 percent of cases. In these cases 38 percent of offenders were imprisoned for a period of less than 3 months where as 17 percent of these offenders were imprisoned for period of 3>6 months.

The above guide has been prepared by carefully examining the judgements of higher courts in Victoria, where the courts have provided guidance in denouncing and punishing family violence. This guide outlines the sentencing principles in the context of family violence, in conjunction with strong views expressed by Higher Courts which provide guidance to lower courts whilst sentencing offenders of violence.