12. Breach of Protection Orders

Penalties and sentencing for breach of protection orders

12.126 The maximum penalties for breach of a protection order vary significantly across state and territory jurisdictions.[168] The table below sets out the maximum penalties in each jurisdiction.

Jurisdiction

Maximum Penalty

NSW

Imprisonment for two years or 50 penalty units ($5,500) or both (s 14 of NSW Act)

Victoria

Imprisonment for two years or 240 penalty units ($27,220.80) or both (ss 123 and 27 of Victorian Act)

Queensland

Imprisonment for one year or 40 penalty units ($40,000) for first offence, and imprisonment for two years for third and subsequent offences within a period of three years (s 80 of Qld Act)

WA

Imprisonment for two years and fine of $6,000 or both (s 61 WA Act)

SA

Imprisonment for two years—but if breach of ‘intervention order’ under s 13 (order to undertake intervention program)—maximum penalty is $1,250 (s 31 of SA Act)

Tasmania

Tiered penalties: imprisonment for one year or fine of 20 penalty units ($2,400) for first offence to imprisonment for five years for fourth or subsequent offence (s 35 of Tas Act)

ACT

Imprisonment for 5 years or 500 penalty units ($50,000)or both (s 90 of ACT Act)

NT

Imprisonment for 2 years or 400 penalty units( $44,000) or both (ss 121, 122 of NT Act)

12.127 As stated by the Australian Government Solicitor there are, however, some difficulties in making straightforward comparisons concerning the different maximum penalties because of reasons including the following:

—while the applicable fine in one jurisdiction may be lower than in others, the maximum term of imprisonment in that jurisdiction may be higher than in some others; …

—some, but not all, jurisdictions have a tiered penalty system for first and subsequent breaches.[169]

12.128 Under the Model Domestic Violence Laws, breach of a protection order is a summary offence which attracts a maximum penalty of:

  • $24,000 or imprisonment for one year for a first offence; and
  • imprisonment for two years for a second offence.[170]

12.129 In 2008 the Sentencing Advisory Council (Victoria) recommended that imprisonment for two years should be the maximum penalty for a breach of protection orders—as well as breach of police-issued family violence safety notices and stalking intervention orders.[171]

12.130 Whatever the maximum penalty for breach of protection orders, a key issue is how such breaches are treated in sentencing. For example, the WA review of family violence legislation noted a concern that breaches of protection orders are being treated leniently.[172] It noted that despite legislative amendments to increase penalties for breaches, in some cases actual penalties imposed are low and do not reflect the gravity of the breach and its consequences:

Offenders are being charged more by the Police however court sentencing is very lenient with offenders usually given small fines as can be seen by our tracking and monitoring of court outcomes at our local court.

Some of the penalties given to respondents for breaching were so insignificant that they did not act as a deterrent and made women feel like the order or the seriousness of the situation had been trivialised. ie. $100 fine—‘a speeding ticket costs more than that’.[173]

12.131 Similarly, in respect of sentencing for breach of protection orders in Queensland, Douglas has stated that ‘penalties are often inappropriate and generally very low for breach matters’:[174]

In 40 per cent of cases no conviction was recorded. … The study showed that 42 per cent of matters resulted in fines. In most of the matters where fines were ordered, the fines were less than $500. … Fines are inappropriate in the context of breach matters as there are potential problems associated with this form of penalty in the context of domestic violence. Considering the frequently ongoing connections between the victim and the defendant in the domestic violence context there is a risk that it will actually be the victim of the breach who will pay the fine from the family income. Alternatively, there is a risk that the fine will be paid from money that should be paid as child support.[175]

12.132 The Sentencing Advisory Council (Victoria) produced a report in 2009 on sentencing practices for breach of protection orders, which made the following observations:

All of the stakeholders consulted considered breach of a family violence intervention order to be a serious criminal offence; however, few were of the opinion that current sanctions reflect this seriousness. There is significant frustration amongst some stakeholder groups at what they perceive to be leniency in sentencing these matters.

The Council’s data analysis confirms stakeholder perceptions that there is a predominance of lower-end orders (particularly fines and adjourned undertakings) for breach offences. For example, the most common sentence imposed on people sentenced for breaching an intervention order between July 2004 and June 2007 was a fine (37.2 per cent), and the second most common sentence was an adjourned undertaking (18.5 per cent). The most common fine was between $500 and $1000.

Courts also imposed these lower-end orders relatively frequently on repeat offenders.[176]

12.133 The Sentencing Advisory Council (Victoria) developed guiding principles for sentencing breaches of protection orders to promote appropriate and consistent sentencing practices.[177] As stated by the Victorian Government in a submission to this Inquiry:

The guidelines are designed to help magistrates place appropriate weight on the sentencing considerations that are most relevant to the offence. [There is] a section examining the different sentencing orders and some relevant considerations for the court when sentencing for particular types of breaches. The guidelines were developed in consultation with a number of stakeholders, including magistrates, and are not intended to displace judicial discretion. The Victorian Chief Magistrate has endorsed the guidelines.[178]

12.134 The NSW family violence legislation provides that a person who breaches a protection order must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person, unless the court orders otherwise.[179] Where the court determines not to impose a sentence of imprisonment it must give its reasons for doing so.[180]

12.135 The NT family violence legislation contains a number of provisions regulating the sentencing of protection orders which are said to apply despite the Sentencing Act 1995 (NT).[181] Those provisions include that where an adult breaches a protection order the court must record a conviction and sentence the person to imprisonment for at least seven days if the person has previously been found guilty of contravening a protection order. However, this requirement does not apply if:

  • the offence does not result in harm being caused to a protected person; and
  • the court is satisfied it is not appropriate to record a conviction and sentence the person under the subsection in the particular circumstances of the offence.

12.136 The NT family violence legislation also provides that if the person sentenced to serve a term of imprisonment for breaching a protection order is already serving another term of imprisonment for another offence, the court must direct the term of imprisonment to start from the end of the other term of imprisonment.[182]

12.137 The Victorian sentencing legislation makes it clear that the sentencing option of home detention is not available where an offender has breached a protection order—whether that order was made in Victoria or in another state or territory.[183]

Submissions and consultations

Consistency of maximum penalties

12.138 In the Consultation Paper, the Commissions asked whether there should be consistency of maximum penalties for breach of protection orders across the jurisdictions and, if so, why and what the maximum penalty should be.[184]

12.139 Stakeholder views on these issues were divided. Some stakeholders expressed concern about consistency of maximum penalties on the basis that: it might reduce maximum penalties in some jurisdictions;[185] might ‘not translate into consistent sentences’,[186] and it was more important that a court consider the circumstances of breach on a case by case basis.[187]

12.140 Better Care for Children expressed the view that ‘raising the bar on penalty is irrelevant to the outcome’.[188] A legal service provider also expressed the view that it is not the maximum penalties which are the issue because ‘they are never applied. It is the minimum penalties [in the NT] that are most often drawn on’.[189] Another service provider echoed this, stating that in its experience ‘offenders breaching protection orders are not given the maximum penalties’.[190]

12.141 There was, however, considerable support for national consistency in the level of maximum penalty.[191] For example, in a joint submission, Domestic Violence Victoria and others supported consistency,

provided that orders, their conditions and the interpretative framework in each family violence statute are broadly consistent across all jurisdictions … Consistency of maximum penalties is also important in the context of planned mutual recognition and national registration of domestic/family violence protection orders.[192]

12.142 Berry Street Inc supported consistency because

it makes a clear statement about the gravity of the issue and the right of victims to be protected equally regardless of the jurisdiction they fall within.[193]

12.143 One service provider made no comment regarding maximum penalties but submitted that ‘consistency of sentence is an important factor in ensuring fairness across the country’.[194]

12.144 Of those stakeholders that supported consistent maximum penalties, they expressed divergent views about what the maximum penalty should be. Stakeholders variously expressed support for maximum penalties of imprisonment for two,[195] three[196] and five years,[197] with one supporting escalating penalties for subsequent breaches with a maximum of two years for recidivist offenders.[198]

12.145 The Victorian Government, for example, noted that the maximum penalty in Victoria for breach of two years and/or 240 penalty units is the level advised as appropriate by the Sentencing Advisory Council. It submitted that this penalty ‘is specific to the Victorian context and has been developed on the basis of research and consultation’.[199]

12.146 Stubbs noted that the ‘question of the maximum penalty for a breach becomes more significant if police are failing to charge for criminal offences that might make up the breach’.[200] Another stakeholder also emphasised the need for police to take breaches of protection orders seriously.[201]

Sentences imposed for breach

12.147 In the Consultation Paper, the Commissions asked in practice, what issues or concerns arise about the sentences actually imposed on offenders for breach of protection orders.[202]

12.148 While stakeholders acknowledged that there is ‘diverse variation in the practices of different jurisdictions and even within the one jurisdiction’,[203] a constant theme that arose in submissions was either that no sentences are being imposed or that those that are imposed for breach of protection orders are often low.[204] For example, Women’s Legal Services Australia submitted that:

WLSA … is concerned by situations where relatively lenient sentences are imposed on offenders for breaches of protection orders that involve violence, and in particular the use of violence with instruments such as wheel braces or other metal instruments. One of the women’s legal services has witnessed $11.00 good behaviour bonds being given out for breaches … even on subsequent violations of good behaviour bonds. Such penalties trivialise the seriousness of family violence and send out a message of tolerance of family violence to the community.[205]

12.149 An advocacy organisation in WA expressed a similar view:

Sentences imposed for breaches of violence restraining orders in WA are minimal to say the least. Most sentences impose a fine of around $200 and sentences do not appear to increase on a second or third breach. Breaches … need to be taken seriously and dealt with as serious criminal offences. Without harsher penalties, violence restraining orders are seen ‘as not worth the paper they are written on’ … particularly in rural and remote areas.[206]

12.150 In a joint submission, Domestic Violence Victoria and others, affirmed the concerns identified in the Sentencing Advisory Council Report: Sentencing Practices for Breach of Family Violence Intervention Orders concerning leniency in the sentencing of offenders and repeat offenders in Victoria who breach protection orders.[207] The Victorian Government also referred to this report, and stated that ‘it is currently considering [its] recommendations’.[208]

12.151 The Department of Premier and Cabinet (Tas) submitted that:

Multiple breaches are dealt with together and this can result in a lesser sentence than would be awarded had they been dealt with separately. Magistrates are also refusing to record a conviction for breach of an order thereby avoiding the possible imposition of a period of imprisonment.[209]

12.152 Some expressed concerns about lack of police enforcement as well as leniency in sentencing.[210] For example, the Queensland Law Society stated:

Too often there is no sentence actually imposed or a minimal fine. Too often offenders continue to commit acts of domestic violence including breaches of protection orders for which they are not prosecuted by police, confident in their belief that they will only receive a minimal penalty, if they are prosecuted at all.[211]

12.153 Some stakeholders stated that the effect of lenient sentencing is to undermine victims’ confidence and respect in the legal system;[212] stop victims from reporting offences because their experiences have not ‘been validated by the court’;[213] and fail to act as a deterrent to future family violence.[214] One stakeholder also noted that lenient sentencing can have fatal repercussions for victims, and suggested consideration be given to ‘stronger monitoring [of offenders] after release’.[215]

12.154 However, some stakeholders noted concerns countervailing those expressed about leniency in sentencing. One legal service provider in the NT noted that there is a tension in that jurisdiction between keeping Indigenous men out of prison and keeping Indigenous women safe. It stated ‘currently we have mandatory sentencing provisions for breaches. We do not know what the answer is’.[216]

12.155 Similarly, the Local Court of NSW identified further complicating factors in sentencing, including that:

the punishment of an offender may well have an adverse impact upon the victim or any children of a relationship, particularly in circumstances where there is an ongoing relationship. This might include financial hardship due to the imposition of a fine, emotional, relational and financial hardship due to the imposition of a custodial sentence, or more generally the risk of reprisal against a victim by an offender who regards the punishment as being the ‘fault’ of the victim. …

This is of particular concern because in NSW, the imprisonment of offenders for breach of a protection order is not an infrequent occurrence … The available sentencing statistics indicate that, in NSW, an offender is almost twice as likely to be sentenced to a period of imprisonment for breaching [a family violence protection order] than for breach of a personal violence order and is likely to receive a more serious sentence … in general.[217]

12.156 Other general concerns expressed about current sentencing practices for breach include that: there is inconsistency in sentencing;[218] the courts’ treatment of mitigating factors—such as victim’s consent to mitigate sentence;[219] and the tendency for courts to minimise breaches concerning conditions about access in relation to children. Three stakeholders stated that magistrates often perceive these kinds of breaches to be related more to the existence of inappropriate family law orders.[220]

Legislative direction to courts regarding sentencing for breach of protection orders

12.157 In the Consultation Paper, the Commissions asked whether state and territory family violence legislation should contain provisions which direct courts to adopt a particular approach on sentencing for breach of a protection order—for example, a provision such as that in s 14(4) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which requires courts to sentence offenders to imprisonment for breach of protection orders involving violence, unless they otherwise order and give their reasons for doing so.[221]

12.158 Stakeholder views on this issue were divided. Many stakeholders supported such an approach.[222] For example, Legal Aid NSW and the Women’s Domestic Violence Court Advocacy Network Service expressed the view that breaches with violence should automatically result in a custodial sentence.[223]

12.159 The Queensland Law Society submitted that those who commit violence ‘need to get the message loud and clear to stop committing acts of domestic violence and to start complying with orders’.[224] Women’s Legal Services NSW, in supporting the approach, noted that the requirement to give reasons for not ordering imprisonment is an important safeguard in the NSW legislation.[225]

12.160 The Department of Premier and Cabinet, Tasmania expressed qualified support on the basis that ‘there are directions given for the sort of circumstances in which a lesser penalty is appropriate and still some discretion for mitigating circumstances’.[226]

12.161 However, many stakeholders expressed concern about providing legislative direction to courts on how to sentence for breach of a protection order,[227] or opposed it outright.[228]

12.162 A key theme which emerged in the submissions was an opposition to mandatory sentencing or to presumptions of imprisonment. For example, National Legal Aid stated that ‘it was not generally supportive of mandatory penalties’;[229] and SA Deputy Chief Magistrate Andrew Cannon and the Victorian Government expressed opposition to mandatory sentencing or to presumptions of imprisonment for criminal offences.[230] Concerns were expressed about mandatory sentencing, for example, on the basis that it undermines judicial discretion,[231] and acts as a deterrent for victims to report violence and breaches[232]—including in the NT where there is an identified tension between keeping victims safe and striving to reduce the incarceration of Indigenous men.[233] The Local Court of NSW also observed that some of its members had noted that:

It appears Indigenous individuals, especially those in country areas with high rates of unemployment, are particularly reluctant to report breach of protection order, due to a perception that the perpetrator who is also the family income-earner will most likely be imprisoned.[234]

12.163 The Queensland Government also expressed caution about how such legislative directions might affect vulnerable groups—including Indigenous peoples—and stated that this issue is to be considered in the review of Queensland’s family violence legislation.[235]

12.164 In addition, mandatory imprisonment was said not to always represent the best solution to the problem.[236] For example, Cannon stated that he was

unconvinced that immediate imprisonment in most cases will remedy [the] problem. Early police intervention, victim support and offender programs, including dealing with issues of substance abuse, will be more productive in most cases than imprisonment.[237]

12.165 Stubbs also highlighted the drawbacks of imprisonment:

The use of imprisonment is costly in both financial and human terms, including for families. It may be an important means for providing some period of safety for victims, at least in the interim while the offender is in custody, as well as serving other traditional sentencing objectives, but it can be damaging. The alleged benefits of incarceration should not be overstated. Offenders may not necessarily receive access to appropriate treatment or other programs while in custody. The negative effects of prison may further undermine the offender’s capacity to live a socially productive life. Imprisonment should be used sparingly and when justified by the facts.[238]

12.166 As an alternative to mandatory sentencing or presumptions of imprisonment, the Victorian Government said that ‘a better approach would be to support judicial officers to ensure that they have all of the information they need to make sentencing decisions’.[239] In this regard, it referred to the guiding principles for sentencing breaches of protection orders developed by the Sentencing Advisory Council (Victoria), and endorsed by the Victorian Chief Magistrate. The Aboriginal Family Violence Prevention and Legal Service Victoria also preferred guidance for judicial officers to mandatory sentencing.[240]

12.167 While ‘philosophically opposed to any form of mandatory sentencing’, Women’s Legal Service Queensland submitted that ‘there needs to be some way of directing the courts to take these offences seriously’:

Alternate sentencing options are worth investigating (eg being more innovative and creative in the crafting of continuing orders and also having severely escalating penalties for repeat offenders.[241]

Sentencing for non-violent breaches

12.168 In the Consultation Paper, the Commissions asked what types of non-financial sanctions are appropriate to be imposed for breach of protection orders where the breach does not involve violence or involves relatively low levels of violence.[242]

12.169 Responses in submissions to this question fell into two broad categories. The first group expressed concerns about the notion of ‘low levels of violence’. The second group offered suggestions about appropriate sanctions.

12.170 Some stakeholders stressed that the issue is not whether a breach involves no violence or ‘low-levels’ of violence but its impact on the victim—in particular, whether it causes fear or damages a victim’s sense of security.[243] National Legal Aid said this is particularly relevant ‘when breaches are not considered within the historical context of the violence but are treated as single incidents’.[244] Legal Aid NSW stated that ‘where a breach involves violence the breach should be considered seriously and an appropriate sanction imposed, financial or otherwise’.[245]

12.171 Women’s Legal Services Australia expressed some concern about defining ‘low level violence’ and considering offences that involved no element of physical violence to be low level.[246]

12.172 Some stakeholders stated that, in some circumstances, financial sanctions in the form of compensation for financial abuse or property damage—such as the cost of changing locks—might be appropriate sanctions.[247] 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.[248] Therefore, there was support for ‘perpetrator programs’ such as violence and drug and alcohol rehabilitation programs;[249] probation with special conditions, such as attending ‘perpetrators’ courses or counselling’;[250] men’s behaviour programs;[251] psychiatric assessment and treatment;[252] anger management programs;[253] and educational programs on family violence with ‘therapeutic interventions’.[254]

12.173 There was also broad support for community service orders,[255] with some stakeholders stressing the need for such work to be ‘meaningful’,[256] ‘constructive and rehabilitative’.[257]

12.174 One stakeholder supported the idea of good behaviour bonds or adjournments with a requirement to report back to the court, incorporating ‘active review’ by the court of the offender’s conduct.[258] Women’s Legal Services NSW also expressed support for good behaviour bonds for low level breaches because of the element of accountability built into them in the event of breach.[259]

12.175 The Commissioner for Victims’ Rights (South Australia) also submitted that victim impact statements should be utilised more widely and that victims should be allowed to give an indication of the type or nature of sentence they would like the court to consider.[260]

Commissions’ views

Consistency of maximum penalties

12.176 The Commissions do not make any recommendations about consistency of maximum penalties for breach of protection orders for a number of reasons. First, in the Commissions’ view, the issue of the level of maximum penalties does not appear to be the key issue of concern identified by stakeholders. Rather, issues of more pressing concern are the lack of enforcement of breaches and, where they are enforced, their lenient treatment on sentencing. Increasing maximum penalties will not necessarily lead to the imposition of sentences with higher maximum penalties—particularly in light of statistical data and stakeholder observations which support the proposition that courts do not, generally, tend to impose the maximum penalty for breach of a protection order.

12.177 Further, the Commissions note the wide disparity of views about an appropriate maximum penalty, and do not consider that they have an appropriate empirical basis for supporting one level of maximum penalty over another. For example, the Commissions acknowledge the comments made by the Victorian Government that the maximum penalty in Victoria is the level advised by the Sentencing Advisory Council (Victoria), developed on the basis of research and consultation with Victorian stakeholders—and accept that such maximum penalty appears to be appropriate in the Victorian context. However, further detailed consideration and consultation would need to be undertaken to assess whether such a maximum penalty was appropriate in other jurisdictions, for example, in light of their different sentencing legislation.

12.178 In addition, the Commissions consider that consistency in sentencing—as opposed to consistency of maximum penalties—is the more pertinent issue in practice, and that there are many ways of achieving this, including through a national bench book, guidelines—such as those developed by the Sentencing Advisory Council (Victoria)—education and training, and the use of sentencing databases which are intended to assist a court in deciding whether a proposed sentence ‘is in any way inside or outside the normal range of penalties imposed for similar offences in past cases’.[261] The use of guidance in a national bench book on family violence is addressed below.

Guidance for sentencing for breaches of protection orders

12.179 The Commissions note the significant concerns expressed by stakeholders about leniency in sentencing for breach of protection orders, as well as concerns about inconsistency in sentences. The Commissions maintain their preliminary views expressed in the Consultation Paper that a national bench book on family violence could play a significant and valuable role in guiding judicial officers in sentencing in family violence matters.[262] In particular, courts should be given guidance on how to sentence for breaches of protection orders.

12.180 The Commissions have considered the Guiding Principles for Sentencing Contraventions of Family Violence Intervention Orders prepared by the Sentencing Advisory Council (Victoria) and consider that these guidelines provide an instructive model for guiding judicial discretion in the sentencing for breach of protection order offences. In particular, some of the content of these guidelines could form the basis of material to be included in a national bench book, with adjustments made to accommodate jurisdictional differences in maximum penalty levels for breaches, and in sentencing options.

12.181 Some of the key matters addressed by the Victorian guidelines, which the Commissions consider worthy of consideration in guidelines in a section on sentencing for breach of protection orders in a national bench book on family violence include:

  • The purposes of sentencing an offender for breach of a protection order. The Sentencing Advisory Council stated that the primary purpose ‘is to achieve compliance with the [protection] order or future orders to ensure the safety and protection of the victim’,[263] and that other purposes are denunciation, deterrence and punishment. The Council stated that ‘caution should be exercised that these [other] purposes do not conflict with considerations of community protection, particularly as regards the victim’, noting that immediate incarceration may provide short term protection but that the long-term protection of a victim is also an important consideration.[264]
  • The potential impact of particular sentencing options on a victim of family violence, including the possible deleterious repercussions of imposing fines on offenders for family-violence related offences. In this regard, the Council’s guidelines note that ‘measures intended to protect the victim can place them at increased risk, and sentences designed to punish the offender may indirectly punish the victim’.[265] The guidelines further state:

there will be occasions where a sentence with coercive rehabilitation requirements (such as mandatory attendance at a behavioural change course) as well as a punitive element (such as community work or a financial condition) strikes a better balance between the purposes of sentencing than a sentence such as a fine.[266]

  • The identification of sentencing factors relevant to the victim[267]—including the nature of the contravention and its impact on the victim; abuse of power; the presence of children; the contribution of the victim;[268] and the vulnerability of the victim.[269]
  • The identification of sentencing factors relating to the offender—including the culpability of the offender which entails a consideration of whether the offence was committed intentionally, recklessly or negligently and the offender’s level of understanding of the order; findings of guilt about other family violence offences; and the timing of the breach. On the latter issue, the guidelines provide, ‘where an order is contravened only a short time after [its making] or there has been an earlier contravention, this should be an aggravating factor’.[270]
  • Factors relevant to determining the severity of sentencing range and the appropriateness of particular sanctions for levels of severity of breach. In this respect, the guidelines usefully set out factors and sanctions appropriate for breaches of varying degrees of seriousness—categorised as low, medium and high.

12.182 In addition, the Commissions consider that the guidance to be provided in the national bench book should address the benefits of sentencing options that aim to change the behaviour of the offender. Sentencing options with a rehabilitative aspect have an important role to play in long term strategies to break the cycle of violence.

12.183 The Commissions agree the level of seriousness of a breach may not necessarily be linked to the level of violence used by an offender in breaching the order, or to whether the violence was physical, and that a key factor is the impact a breach has on a victim’s sense of security. That is why they consider guidance in sentencing should address specifically the impact of an offence on a victim. In addition, the Commissions consider that the guidance in the bench book should also make the point—as is made in the Council’s guidelines—that ‘breaches not involving physical violence can have a significant impact on the victim and should not necessarily be treated as less serious than those breaches involving physical violence’.[271]

12.184 Because of the significance of the impact on the victim of a breach of a protection order, the Commissions further consider that police operational guidelines—reinforced by training—should require police when preparing witness statements to ask victims about the impact on them of the breach, and advise them that they may wish to make a victim impact statement—which is one way of informing a court about the harm and injury suffered by a victim as result of a breach.[272] Police should also be required to explain what use can be made of victim impact statements.

12.185 However, while the Commissions consider that victims should be encouraged and supported in the making of victim impact statements which explain the impact a breach has had on them, they do not agree that victims should be allowed to indicate the type or nature of sentences that they would like the court to consider. A victim’s desire for retribution, for example, should not be a legitimate consideration in sentencing.[273] The Commissions endorse the view expressed in ALRC Report 103, Same Crime, Same Time: Sentencing of Federal Offenders, that victims should be precluded from expressing an opinion about the sentence that should be imposed on a federal offender.[274] However, that is not to say, that a victim should be precluded from informing the court about the impact which he or she thinks a particular sentencing option will have on the victim.

Recommendation 12–8 The national family violence bench book (see Recs 13–1 and 31–2) should contain a section guiding courts on how to sentence offenders for breach of protection orders, addressing, for example:

  1. the purposes of sentencing an offender for breach of a protection order;
  2. the potential impact of particular sentencing options, especially fines, on a victim of family violence;
  3. sentencing factors relating to the victim, including the impact of the offence on the victim;
  4. sentencing factors relating to the offender, including the timing of the breach;
  5. factors relevant to determining the severity of sentencing range and the appropriateness of particular sanctions for different levels of severity of breach;
  6. that breaches not involving physical violence can have a significant impact on a victim and should not necessarily be treated as less serious than breaches involving physical violence; and
  7. the benefits of sentencing options that aim to change the behaviour of those who commit violence.

Recommendation 12–9 Police operational guidelines—reinforced by training—should require police, when preparing witness statements in relation to breach of protection order proceedings, to ask victims about the impact of the breach, and advise them that they may wish to make a victim impact statement and about the use that can be made of such a statement.

Repeal of mandatory sentencing and mandatory imprisonment provisions

12.186 In the Commissions’ view, the preservation of judicial discretion in sentencing is essential to enable individualised justice to be done on a case-by-case basis. The Commissions do not support the inclusion in state and territory family violence legislation of provisions directing courts to adopt a particular approach on sentencing for breach of a protection order where such legislative direction removes the exercise of judicial discretion.

12.187 In particular, the Commissions oppose mandatory sentencing for breach of protection orders—including specification of mandatory minimum penalties, or directions to impose imprisonment in particular circumstances. In this regard, the Commissions acknowledge the concerns expressed by stakeholders that such provisions can have an adverse impact on vulnerable offenders, particularly Indigenous offenders; act as a deterrent for victims to report violence and breaches; and that imprisonment may not necessarily represent the best outcome in any particular case. Sometimes imprisonment will be an appropriate sentencing option for breaches of protection orders involving violence. However, as a general principle, the Commissions consider that imprisonment should be regarded as a sentencing option of last resort.[275]

12.188 As noted in ALRC Report 103, mandatory sentencing has been the subject of considerable criticism by commentators, and by government bodies and committees that have examined the issue. Criticisms of mandatory sentencing include: that such schemes escalate sentence severity; are unable to take account of the particular circumstances of the case; redistribute discretion so that decisions by the police and prosecuting authorities become increasingly important; and contravene a number of accepted sentencing principles—including proportionality, parsimony and individualised justice—and international human rights standards.[276]

12.189 The maintenance of individualised justice and broad judicial discretion are essential attributes of our criminal justice system, outweighing any potential deterrent effect that mandatory sentencing might have. The Commissions thus recommend that state and territory family violence should not impose mandatory minimum penalties or mandatory imprisonment for the breach of a protection order.

12.190 The Commissions consider that the provision of guidance to judicial officers in a national bench book on family violence on how to sentence for breach of protection orders is preferable to mandatory sentencing provisions.

Recommendation 12–10 State and territory family violence legislation should not impose mandatory minimum penalties or mandatory imprisonment for the offence of breaching a protection order.

 

[168] The Australian Government Solicitor highlighted maximum penalties on breach of a protection order as one of the areas of family violence legislation in respect of which there is significant variation across the jurisdictions: Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 14.

[169] Ibid, 28.

[170] Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 64.

[171] Sentencing Advisory Council (Victoria), Breaching Intervention Orders Report (2008), Rec 1.

[172] Department of the Attorney General (WA), A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), 23.

[173] Ibid, 26 (citations omitted).

[174] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 464.

[175] Ibid, 464 (citations omitted).

[176] Sentencing Advisory Council, Sentencing Practices for Breach of Family Violence Intervention Orders: Final Report (2009), viii.

[177] Ibid, App 1.

[178] Victorian Government, Submission FV 120, 15 June 2010.

[179] This directive does not apply if the person convicted was under 18 years of age at the time of the alleged offence.

[180] Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14.

[181] Domestic and Family Violence Act 2007 (NT) s 121.

[182] Ibid.

[183] Sentencing Act 1991 (Vic) s 18ZV.

[184] Consultation Paper, Question 6–19.

[185] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010.

[186] National Legal Aid, Submission FV 232, 15 July 2010.

[187] Ibid; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[188] Better Care of Children, Submission FV 72, 24 June 2010.

[189] Confidential, Submission FV 164, 25 June 2010.

[190] Confidential, Submission FV 162, 25 June 2010.

[191] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; A Lamb, Submission FV 121, 16 June 2010; Confidential, Submission FV 77, 2 June 2010;

[192] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[193] Berry Street Inc, Submission FV 163, 25 June 2010. A similar view was expressed in Confidential, Submission FV 89, 3 June 2010.

[194] Confidential, Submission FV 171, 25 June 2010.

[195] Confidential, Submission FV 198, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Government, Submission FV 120, 15 June 2010.

[196] A Lamb, Submission FV 121, 16 June 2010.

[197] C Pragnell, Submission FV 70, 2 June 2010.

[198] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. A similar view was expressed in Confidential, Submission FV 184, 25 June 2010.

[199] Victorian Government, Submission FV 120, 15 June 2010.

[200] J Stubbs, Submission FV 186, 25 June 2010.

[201] Confidential, Submission FV 184, 25 June 2010.

[202] Consultation Paper, Question 6–20.

[203] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[204] Ibid; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 184, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Confidential, Submission FV 96, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[205] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[206] Confidential, Submission FV 184, 25 June 2010.

[207] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[208] Victorian Government, Submission FV 120, 15 June 2010.

[209] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[210] Queensland Law Society, Submission FV 178, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010. One confidential submission noted that police often do not enforce breaches involving the sending of text messages on the basis that such messages ‘could have been sent by anyone’: Confidential, Submission FV 96, 2 June 2010.

[211] Queensland Law Society, Submission FV 178, 25 June 2010.

[212] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[213] Confidential, Submission FV 77, 2 June 2010.

[214] Ibid. See also C Pragnell, Submission FV 70, 2 June 2010.

[215] Confidential, Submission FV 89, 3 June 2010.

[216] Confidential, Submission FV 164, 25 June 2010.

[217] Local Court of NSW, Submission FV 101, 4 June 2010.

[218] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. An Indigenous family violence service noted very different outcomes in terms of severity of sentencing across the Northern Territory, Western Australia and South Australia: Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.

[219] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[220] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[221] Consultation Paper, Question 6–21.

[222] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010. Another stakeholder supported the ‘consideration of such issues in response to breaches of protection orders involving violence’: No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010.

[223] Legal Aid NSW, Submission FV 219, 1 July 2010.

[224] Queensland Law Society, Submission FV 178, 25 June 2010.

[225] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[226] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[227] Queensland Government, Submission FV 229, 14 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Local Court of NSW, Submission FV 101, 4 June 2010.

[228] Confidential, Submission FV 198, 25 June 2010; A Cannon, Submission FV 137, 23 June 2010; Victorian Government, Submission FV 120, 15 June 2010.

[229] National Legal Aid, Submission FV 232, 15 July 2010.

[230] A Cannon, Submission FV 137, 23 June 2010; Victorian Government, Submission FV 120, 15 June 2010. See also Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010, which expressed opposition to mandatory sentencing for breaches.

[231] Queensland Government, Submission FV 229, 14 July 2010.

[232] Confidential, Submission FV 198, 25 June 2010; Local Court of NSW, Submission FV 101, 4 June 2010.

[233] Confidential, Submission FV 164, 25 June 2010.

[234] Local Court of NSW, Submission FV 101, 4 June 2010.

[235] Queensland Government, Submission FV 229, 14 July 2010.

[236] A Cannon, Submission FV 137, 23 June 2010.

[237] Ibid.

[238] J Stubbs, Submission FV 186, 25 June 2010.

[239] Victorian Government, Submission FV 120, 15 June 2010.

[240] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[241] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[242] Consultation Paper, Question 6–22.

[243] National Legal Aid, Submission FV 232, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Confidential, Submission FV 109, 8 June 2010.

[244] National Legal Aid, Submission FV 232, 15 July 2010.

[245] Legal Aid NSW, Submission FV 219, 1 July 2010.

[246] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[247] National Legal Aid, Submission FV 232, 15 July 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[248] For example, No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; Confidential, Submission FV 96, 2 June 2010.

[249] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Confidential, Submission FV 77, 2 June 2010.

[250] Queensland Law Society, Submission FV 178, 25 June 2010. Counselling was also supported in the following submissions: Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010.

[251] Berry Street Inc, Submission FV 163, 25 June 2010.

[252] C Pragnell, Submission FV 70, 2 June 2010.

[253] Confidential, Submission FV 164, 25 June 2010; Confidential, Submission FV 162, 25 June 2010.

[254] Confidential, Submission FV 109, 8 June 2010.

[255] Confidential, Submission FV 198, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 109, 8 June 2010; Confidential, Submission FV 96, 2 June 2010.

[256] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[257] Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[258] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[259] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[260] Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[261] I Potas, ‘The Use and Limitations of Sentencing Statistics’ (2004) 31 Sentencing Trends & Issues 1, 6–7. See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), Chs 19, 20 and 21, which considered measures to promote better and more consistent federal sentences.

[262] See Recs 13–1 and 31–2.

[263] Sentencing Advisory Council, Sentencing Practices for Breach of Family Violence Intervention Orders: Final Report (2009), App 1, [1.2]. The purposes of sentencing are discussed in Ch 4.

[264] Ibid, App 1,

[265] Ibid, App 1, [1.1]–[1.3].

[266] Ibid, App, 1, [1.5].

[267] Ibid, App 1, [2.1]–[2.10].

[268] The Commissions’ views on the treatment of consent to contact by a victim in sentencing for breach of protection orders are discussed above.

[269] Sentencing Advisory Council, Sentencing Practices for Breach of Family Violence Intervention Orders: Final Report (2009), App 1, [2.1]–[2.10].

[270] Ibid, App 1, [2.15].

[271] Ibid, App 1, [2.2].

[272] The ALRC considered the use of victim impact statements in Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), Ch 14.

[273] Sentencing Act 1995 (WA) s 25(2) prohibits a victim impact statement from addressing the way in which or the extent to which an offender ought to be sentenced. Compare Sentencing Act 1995 (NT) s 106B(5A) which provides that a victim impact statement may contain a statement as to the victim’s wishes in respect of the sentencing order to be made by the court.

[274] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), Rec 14–1(d).

[275] This endorses the view expressed in Ibid, [7.64].

[276] See, Ibid [21.59]–[21.61]. The principle of proportionality requires courts to impose sentences that bear a reasonable or proportionate, relationship to the criminal conduct in question. The principle of parsimony operates to prevent the imposition of a sentence that is more severe than is necessary to achieve the purpose or purposes of the sentence. The principle of individualised justice requires the court to impose a sentence that is just and appropriate in all the circumstances of the particular case: see Ibid Ch 5.

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