Recognising family violence in sentencing

13.112 The dynamics of family violence can also be recognised to some extent in the sentencing of offenders who are found guilty of crimes committed in circumstances of family violence. This includes by way of the following forms of recognition:

  • the fact that the offence being sentenced was committed as part of a broader course of family-violence related conduct; and
  • the presence of any jurisdiction-specific aggravating or non-mitigating circumstances relevant to the family violence context—for example, the existence of a family relationship between the offender and victim, or the commission of the offence in abuse of a position of trust or authority in relation to the victim, or in breach of a protection order.

13.113 These matters are the focus of this section. In addition, the Commissions consider practical strategies to promote the consistent recognition and treatment of family‑violence related factors in sentencing, in line with the Commissions’ guiding principle of fairness.[187]

Recognising courses of family-violence related conduct in sentencing

13.114 One stakeholder commented that:

Perhaps there is space for evidence of a pattern of domestic violence to be a factor in sentencing. By this I mean that the standard assault charges be laid, but when it comes to sentencing, evidence that establishes a pattern of domestic violence would result in a premium being added to whatever sentence is assigned to the proved assault. This way there is no diminishing of the seriousness of the assault charge by putting it in a special category of ‘domestic violence’ but the fact that it is not a simple one-off assault is also taken into account.[188]

13.115 This raises the following issues—which are examined below:

  • the available legal mechanisms for taking a course of conduct into account in sentencing specific offences;
  • the particulars of these mechanisms, including: the stage at which such a course of conduct is proved; the manner of proof and the standard of proof; and whether the course of conduct is limited to proven acts of a criminal nature—as opposed to unproven criminal acts, or acts which are not generally criminal such as economic or emotional abuse; and
  • the extent to which these mechanisms are currently used in respect of offences committed in circumstances of family violence.

13.116 The emphasis of this chapter is upon courses of conduct comprising uncharged conduct, or a combination of uncharged conduct and a small number of charges. As mentioned earlier in this chapter, the Commissions have heard concerns from stakeholders that persons who have committed family violence over a period of time are often prosecuted for only a small number of incidents, due to difficulties in proving specific incidents in the course of ongoing violence. Accordingly, the Commissions have not given consideration to the sentencing of multiple offences in circumstances where most or all incidents forming part of a course of conduct are the subject of individual charges. In particular, the Commissions have not addressed issues relating to the imposition of concurrent or cumulative sentences in respect of multiple offences that form part of a course of conduct.[189]

Sentencing legislation

13.117 Most state and territory sentencing legislation does not expressly refer to a course of conduct as a sentencing factor. One exception is the sentencing legislation of the ACT, which provides that a court sentencing an offender must take into account, where relevant and known:

if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—the course of conduct.[190]

13.118 There is also reference to a course of conduct in the sentencing legislation of South Australia. Under that legislation, in order to assist a court to determine the sentence for an offence, a prosecutor is required to furnish the court with particulars of injury, loss or damage resulting from

a course of conduct consisting of a series of criminal acts of the same or a similar character of which the offence for which sentence is to be imposed forms part.[191]

13.119 The absence of express recognition of a course of conduct in sentencing legislation may be attributable to legal uncertainty about whether a sentencing court can take into account conduct in respect of which an offender has not been charged.

13.120 The ACT provision is expressed in the same terms as the federal sentencing legislation—s 16A(2)(c) of the Crimes Act 1914 (Cth).[192] There has been case law in respect of the federal provision which reveals judicial disagreement about its meaning and ambit. In Weininger v The Queen, Kirby J stated that s 16A(2)(c) did not allow ‘uncharged criminal acts’ to be taken into account in sentencing and expressed the view that the section was an attempt to express the totality principle.[193] Callinan J, however, expressed the view that the section allowed a court to consider relevant conduct,

albeit that it might involve criminal acts which in turn might not have resulted in charged and established (by verdict or plea) facts constituting other offences.[194]

13.121 Submissions and consultations in the course of the ALRC’s inquiry into the sentencing of federal offenders reflected confusion about the meaning and operation of s 16A(2)(c), and the ALRC recommended that the section be redrafted to provide greater clarity.[195]

Representative charges

13.122 A provision allowing a course of conduct to be taken into account is also relevant where representative charges are used—that is, where a court sentences an offender for a limited or representative number of offences on the basis that those offences are part of a wider course of conduct. Representative charges have been used in sexual assault cases, those involving the apprehension of ‘serial offenders’ and corporate criminal and fraud matters.[196] The uncharged offences cannot be used to increase the maximum penalties available for the offences charged, but may provide a basis for refusing to extend any leniency that may otherwise have been extended if the charged offences were isolated incidents. [197]

13.123 However, there are diverging judicial views as to whether multiple admitted or proven offences may also be viewed as a course of conduct for the purposes of placing each individual offence in a higher range of objective seriousness than would otherwise be the case. The Victorian Court of Criminal Appeal has determined the issue in the affirmative, holding that:

As recent decisions of this Court have made clear, 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’. [198]

13.124 The Supreme Court of South Australia has limited the relevance of representative charges to the first ground in the above quotation.[199] The NSW Court of Criminal Appeal, however, is divided on this issue.[200]

13.125 In addition, the Queensland Court of Appeal has held that uncharged conduct which may amount to a separate offence cannot be considered for any purpose at all in sentencing—including to deny leniency.[201] However, the court has subsequently recognised that it may be necessary to revisit this position, ‘some points of which are arguably inconsistent with other authorities both in this court and in other jurisdictions’.[202]

Circumstances of aggravation and mitigation

13.126 Another means of recognising family violence in sentencing is either to treat the fact that a crime was committed in the context of a family relationship as an aggravating factor in sentencing, or prevent it from being considered a mitigating factor in sentencing.

13.127 Aggravating factors increase the culpability of an offender and act to increase the penalty to be imposed on sentencing—but never beyond the maximum penalty for an offence. Mitigating factors decrease the culpability of an offender and act to decrease the extent to which the offender should be punished.

13.128 Not all sentencing legislation of the states and territories sets out aggravating or mitigating factors. Some sentencing legislation states that a court must have regard to the presence of any mitigating or aggravating factor concerning the offender,[203] or must have regard to any mitigating or aggravating factor in determining the seriousness of an offence[204] without listing examples of such factors.[205] In addition, the sentencing legislation of some states and territories identifies certain factors that must be treated as non‑mitigating in all cases.[206]

13.129 The sentencing legislation of NSW, by comparison, sets out a list of aggravating and mitigating factors that a court must take into account.[207]In NSW, it is not an aggravating factor that the victim of an offence is a spouse, intimate partner or related to the offender. However, the sentencing legislation of NSW specifies some aggravating factors that may be relevant to the sentencing of offenders who are found guilty of crimes committed in circumstances of family violence. These include that: the crime was committed in the home of the victim or any other person; in the presence of a child; the offender had a record of previous convictions, particularly those for serious personal violence offences as defined in the Crimes (Domestic and Personal Violence) Act 2007 (NSW); or the offender abused a position of trust or authority in relation to the victim.[208]

13.130 Case law in NSW supports the proposition that the fact that an offence is committed in the context of a family relationship is not a mitigating factor. In Raczkowski v The Queen, for example, the NSW Court of Criminal Appeal stated:

The Court was invited to consider that the offences occurred in the context of a (broken down) domestic relationship … That a violent and pre-planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation.[209]

13.131 Case law in NSW also indicates that the fact that an offence is committed while an offender is subject to the conditions of a protection order to protect the victim of the offence, may be treated as an aggravating factor.[210]

13.132 The Tasmanian family violence legislation specifies some aggravating factors that may be relevant to the sentencing of offenders who are found guilty of crimes committed in circumstances of family violence, in addition to circumstances not involving family violence. These include the fact that the offender knew or was reckless as to whether a child was present at the time of the offence or knew that the affected person was pregnant.[211] The latter factor has particular relevance in family violence circumstances because studies have shown that pregnancy increases a woman’s vulnerability to family violence.[212]

13.133 The South Australian sentencing legislation specifies the following as a relevant factor, without classifying it as an aggravating (or mitigating) factor:

if the offence was committed by an adult in circumstances where the offending conduct was seen or heard by a child (other than the victim (if any) of the offence or another offender)—those circumstances.[213]

13.134 In other jurisdictions, case law indicates that a family relationship between the offender and the victim may, in certain cases, be treated as an aggravating factor, as a matter of sentencing discretion. For example, in R v MFP the Victorian Court of Criminal Appeal stated, with respect to the offence being committed in a ‘domestic’ context:

Moreover, I think it can be seen to be aggravating both as to its potential consequences and also inasmuch as a husband (or a wife) is in a privileged position in relation to a spouse. 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.[214]

13.135 The sentencing legislation of some overseas jurisdictions provides that the commission of a crime in the context of a family relationship is an aggravating factor in sentencing. In Canada, the Criminal Code was amended in 1996 to provide that it is an aggravating factor if there is evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner.[215] On 3 April 2006, the Parliament of Iceland passed an amendment to art 70 of the General Penal Code with regard to family violence, as follows:

In the event that an infraction was directed against a man, woman or child closely related to the perpetrator and their family connection is believed to have aggravated the violence of the act, this should generally be taken into account to increase the severity of the punishment.

13.136 The New Zealand sentencing legislation lists as an aggravating factor the fact that the case involved violence against, or neglect of, a child under the age of 14 years.[216]

The ALRC’s previous consideration of aggravating factors

13.137 In the context of discussing the range of sentencing factors relevant to the sentencing of federal offenders, ALRC Report 103 expressed the view that federal sentencing legislation should not distinguish between sentencing factors that aggravate a sentence, and those that mitigate a sentence.

13.138 The relationship between mitigating and aggravating factors is complicated by the fact that the opposite of a mitigating factor is not necessarily an aggravating factor, and vice versa. For example, a plea of guilty could be a mitigating factor, but it is improper to treat a plea of not guilty as an aggravating factor. Similarly, while youth or old age may be a mitigating factor, the fact that an offender’s age does not fall into either extreme is not an aggravating factor. Some factors may be either aggravating or mitigating depending on the circumstances. Other factors may serve neither to increase nor to decrease the severity of a sentence, but may guide the court in selecting an appropriate sentencing option or in specifying certain conditions tailored to the needs and circumstances of the offender. Factors that could fall into this category include the cultural background, age, and physical and mental condition of an offender.

13.139 Rather than distinguishing between aggravating and mitigating factors, ALRC Report 103 took the approach of recommending factors that should not be treated as either aggravating or mitigating. For example, it stated that because an offender’s consent is integral to effective participation in a restorative justice process or initiative, it would be improper to treat the absence of consent to participate as an aggravating factor.[217]

Sentencing guidance

13.140 Another means of recognising the dynamics of family violence in sentencing offences is the use of specific sentencing guidance. For example, the Sentencing Guidelines Council in the UK has published a guideline on sentencing in the context of family violence.[218] This guideline must be considered by courts pursuant to s 172 of the Criminal Justice Act 2003 (UK) and

makes clear that offences committed in a domestic context should be regarded as being no less serious than offences committed in a non-domestic context. Indeed, because an offence has been committed in a domestic context, there are likely to be aggravating factors present that make it more serious.[219]

13.141 These aggravating factors include: an abuse of trust and power; the particular vulnerability of the victim; exposure of children to violence; where contact arrangements are exploited in order to commit an offence; a proven history of violence or threats by an offender in a domestic setting; a history of disobedience to court orders; and if the victim is forced to leave home.[220]

13.142 The guideline also provides guidance on the application of mitigating and other factors in the family violence context. For example, it provides that the offender’s ‘good character in relation to conduct outside the home’ should generally be ‘of no relevance where there is a proven pattern of behaviour’. [221]

13.143 The guideline also cautions against taking the expressed wishes of the victim into account in sentencing in the context of family violence. Reasons for this include:

  •  it is undesirable that a victim should feel responsibility for the sentence imposed;
  •  there is a risk that the plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender; and
  •  the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.[222]

13.144 Guidance on sentencing is provided in a number of ways in Australian states and territories. For example, the Judicial Commission of NSW and the Judicial College of Victoria each produce sentencing bench books.[223] A bench book outlines what judicial officers ‘may need to know, understand and do on a day-to-day basis’, in the form of a practice manual.[224] Bench books are not intended to lay down or develop the law.[225] Bench books have an important role to play as part of a national judicial education and support program.[226]

13.145 The National Council recommended the production of a model bench book, in consultation with jurisdictions, and as part of a national professional development program for judicial officers on family violence. The National Council commented that such a bench book would ‘provide a social context analysis and case law to complement existing resources and enhance the application of the law’.[227]

13.146 Another form of guidance is through the use of ‘guideline judgments’ by criminal courts of appeal, as provided for in NSW, Victoria, Western Australia and South Australia.[228] As the ALRC stated in ALRC Report 103, guideline judgments are generally delivered by an appellate court in the context of a particular case, but go further than the points raised on appeal to suggest a sentencing scale for the category of crime before the court. They may indicate how particular aggravating or mitigating factors should be reflected in a sentence or suggest how sentences are to be determined for a category of offences or type of offender.[229]

13.147 The advantages of guideline judgments are said to be that they foster consistency while retaining judicial discretion; accommodate special or exceptional cases while serving the aims of rehabilitation, denunciation and deterrence; allow a judge to respond to all the circumstances of a case; result in fewer appeals by the prosecution; and lower pressure on the executive arm of government to respond to media attention.[230] On the other hand, the potential disadvantages of guideline judgments include erosion of judicial discretion, and the possibility of greater use of imprisonment due to a new emphasis on establishing exceptional circumstances to justify departure from a guideline.[231]

13.148 Regardless of the merits of guideline judgments, it is clear that in federal criminal matters a court cannot give a guideline judgment in the nature of an advisory opinion. [232] In Wong v The Queen,[233] the High Court appears to have cast doubt on the constitutional validity of guideline judgments at the federal level in some other circumstances. Wong has created a climate of uncertainty around guideline judgments—at least in the federal sphere—which does not provide a firm foundation for law reform in this area.[234]

13.149 While guideline judgements at the federal level are constitutionally problematic, they remain an option at the state and territory level. Such judgements do not have to specify penalty levels. However, guideline judgements do not appear to have been used outside of NSW,[235] and no such judgment has been made in relation to family violence in NSW.[236] Research suggests that guideline judgments are now less frequently used in NSW because of the introduction of standard minimum sentencing.[237]

Submissions and consultations

Recognising courses of conduct

13.150 In the Consultation Paper, the Commissions sought stakeholder views about the extent to which courses of conduct are currently recognised in the sentencing of family-violence related offences. This included: the use of representative charges by prosecutors; whether offenders pleading guilty to family-violence related charges acknowledge that the offences charged form part of a broader course of conduct including uncharged offences; and judicial recognition of courses of conduct in sentencing.[238] Most submissions and consultations indicated that:

  • representative charges are not commonly used in the prosecution of family-violence related offences;[239] and
  • offenders pleading guilty to family-violence related charges rarely acknowledge that the charges are representative of broader criminality additionally comprising uncharged conduct.[240]

13.151 However, stakeholders were divided about:

  • the extent to which courts currently consider courses of conduct in sentencing family-violence related offences;[241] and
  • the preferable extent to which courses of conduct should be taken into account in sentencing family-violence related offences, including the appropriate use of representative charges.[242]

Current practices in using representative charges

13.152 Most submissions addressing current practices were based upon anecdotal evidence of stakeholders’ experiences. Some legal service providers commented that, in their experience, representative charges are rarely used in family violence cases.[243] The Local Court of NSW suggested that the limited use of representative charges in the Local Court is reflective of their limited use in NSW more generally. The Court observed that the practice appears to be used more frequently in sexual assault cases in higher courts.[244] The Magistrates’ Court and the Children’s Court of Victoria commented that representative charges do not appear to be considered as an option in most cases.[245] Two stakeholders suggested a need for further research into the use of representative charges in the family violence context.[246]

13.153 In contrast, the NSW ODPP expressed the view that representative charges are not being under-utilised in NSW, notwithstanding the complexities associated with sentencing for uncharged conduct.[247] While not commenting specifically on the frequency with which representative charges are utilised in the family violence context, the Commonwealth Director of Public Prosecutions stated that it uses representative charges where they are the most appropriate charges given the evidence available, in accordance with the Prosecution Policy of the Commonwealth.[248] The Prosecution Policy relevantly refers to the ‘criminality principle’—namely, that the charges laid should adequately reflect the nature and extent of the criminal conduct disclosed by the evidence and provide the court with an appropriate basis for sentence.[249]

Current practices in relation to guilty pleas

13.154 Similarly, some stakeholders observed that, in their experience, guilty pleas are not usually accompanied by an acknowledgement by the offender that the offences charged are representative of broader criminality, including uncharged conduct.[250] However, the Aboriginal Family Violence Prevention and Legal Service Victoria commented that such acknowledgement appears to occur more regularly in the Victorian Koori Court. It noted that Aboriginal elders assisting the court have questioned offenders about their previous conduct, in some cases because they have personal knowledge of their behaviour.[251]

Current practices in recognising courses of conduct in sentencing

13.155 The majority of stakeholders commenting on current practices observed that, in their experience, courses of conduct are rarely taken into account in sentencing.[252] National Legal Aid observed that, in some cases, a number of individual charges are laid, or the offender is charged with a course of conduct-based offence. It identified a practice in Western Australia whereby multiple breaches of protection orders are charged individually and, ‘where there are a number of breaches constituting stalking behaviour, the offender is charged with stalking’.[253] However, some stakeholders suggested that courses of conduct are routinely taken into account in sentencing family-violence related charges. The Magistrates’ Court and the Children’s Court of Victoria stated that, in practice, courts do take into account offending forming part of a course of conduct of family violence.[254] NSW Legal Aid and the Women’s Domestic Violence Court Assistance Service suggested that the NSW model of designated ‘domestic violence offences’ enables the court to accumulate progressively histories of family violence and take them into consideration in sentencing.[255]

13.156 Stakeholders did not generally distinguish between judicial consideration of uncharged criminal conduct, and abusive or violent conduct that does not amount to an offence. However, the Magistrates’ Court and the Children’s Court of Victoria stated that courts are unlikely to take into account uncharged criminal conduct or non-criminal family violence, but—as discussed below—suggested that there may be scope to do so.[256] As further discussed below, other submissions expressed general reservations about taking uncharged conduct into account in sentencing.[257]

The appropriate use of representative charges and course of conduct evidence in sentencing family-violence related offences

13.157 In the Consultation Paper, the Commissions sought stakeholder views about three issues. First, the Commissions proposed that police and prosecutors should be encouraged—by way of prosecutorial guidelines, education and training—to pursue, to the maximum extent possible, the option of representative charges as a way of presenting a course of conduct to the court.[258]

13.158 Secondly, the Commissions asked whether the court should also consider the following matters in sentencing, for the purpose of rejecting any claim to mitigation:

  • whether the offence forms part of a series of proved or admitted criminal offences of the same or similar character;
  • whether an offender has pleaded guilty to charges and has acknowledged that they are representative of criminality that also comprises uncharged conduct; and
  • whether the offence forms part of a broader pattern or proved or admitted family violence, which may include violence of a non-physical nature against the victim—such as economic or emotional abuse—which is typically not, of itself, criminal.[259]

13.159 Thirdly, the Commissions asked stakeholders whether the sentencing legislation of states and territories should expressly provide for a course of conduct to be taken into account in sentencing, to the extent that it does not already do so.[260]

13.160 A common theme emerging from submissions on these matters was the need to balance multiple public interests, including that:

  • sentences accurately reflect the nature and extent of criminal conduct;
  • offenders are not punished for crimes for which they have not been convicted; and
  • trials are conducted as efficiently as possible.

13.161 While several stakeholders expressed in-principle support for the use of guidelines and training in the use of representative charges, without specific comments as to detail,[261] some did so in qualified terms, on the basis of the second and third points identified above. For example, National Legal Aid and the Aboriginal Family Violence Prevention and Legal Service Victoria supported the use of prosecutorial guidelines, education and training on the use of representative charges where appropriate, but noted the importance of limiting their use to charged and proven or admitted conduct.[262] National Legal Aid further commented that representative charges and course of conduct evidence may ‘complicate proceedings and lead to evidentiary disputes and delay in the early resolution of cases’.[263] Other submissions expressed similar cautions about the use of representative charges—in particular, reliance upon uncharged conduct—without taking a firm view on the proposal.[264]

13.162 The Magistrates’ Court and the Children’s Court of Victoria commented that it may be desirable for sentencing courts to consider both uncharged criminal conduct and acts of non-criminal family violence in order to put evidence of the offending in a social context. The courts suggested that greater specialisation and training in family violence may facilitate this practice.[265]

13.163 The National Association of Services Against Sexual Violence similarly supported the use of representative charges to place a ‘more realistic picture’ of the offending before the court. It commented, in the context of intimate partner sexual assaults and child sexual abuse, that:

Where there are many incidents, but sufficient evidence for only one or two to meet the threshold of ‘beyond reasonable doubt’, the other incidents just evaporate as if they never occurred.[266]

13.164 Conversely, the Local Court of NSW did not support the proposal that representative charges should be encouraged in the family violence context on three broad grounds.[267] First, it cited the unsettled issue of whether multiple offences admitted or proven as a course of conduct can be used to place each individual offence at a higher level of objective seriousness. The court noted that the question remains open in NSW following the division of opinion among members of the Court of Criminal Appeal in Giles v Director of Public Prosecutions (NSW).[268]

13.165 Secondly, the court noted the practical necessity of maintaining the safeguards associated with the current use of representative charges—namely that a court must be satisfied that the conduct relied upon by the prosecution is:

  • identified with a degree of precision; and
  • either proved or admitted by the offender.

13.166 The court expressed concern that the proposal may compromise the first‑mentioned safeguard, and thus undermine the entitlement of an accused person ‘to be made aware with precision of the alleged facts giving rise to charges against him or her’.

13.167 Thirdly, the court expressed concern that the practice of representative charging may ‘unintentionally have the effect of hindering or protracting the prosecution of family-violence related offences’. The court referred to practice notes directed towards ensuring that guilty pleas are entered at the first available opportunity, and that not guilty pleas proceed expeditiously to hearing. Directions include prescribed dates for the service of the main parts of the prosecution brief, the entry of a plea, the listing of hearing dates and the service of the remainder of the prosecution brief. The court stated that these procedures stemmed from an observation that

the longer it takes to finalise a family-violence related charge, the more prone the matter becomes to a ‘cooling off’ of the victim’s complaint, with the victim becoming reluctant or unwilling to maintain her or his original statement.

13.168 The court further expressed concern about:

the impact that complicating the factual scenarios and charges underlying prosecutions for family violence offences through the use of representative charging might have upon the numbers of defendants prepared to plead guilty to a charge, the extent to which statements of facts are agreed between the prosecution and the defence, and/or the willingness of victims to make or continue to maintain a complaint.[269]

13.169 Some submissions suggested that courses of conduct should be recognised in the substantive elements of offences rather than in sentencing. The NSW ODPP commented that—given the problems arising from the admissibility of uncharged conduct—the best way of ensuring that a course of conduct is placed before the courts is by way of a course of conduct-based offence, such as the persistent sexual abuse of a child.[270] Women’s Legal Service Queensland suggested that potential problems associated with the use of uncharged conduct in sentencing are best addressed by way of substantive offences—including encouraging police to ‘charge all charges’, and recognising the dynamics of family violence in new, aggravated offences.[271]

13.170 Most stakeholders supported the express recognition of courses of conduct as a sentencing factor in sentencing legislation, without explanation or any comments as to the detail of such provisions.[272] However, two legal service providers expressed qualified support, to the extent that legislative provisions address only conduct which has been charged and proved or admitted by the offender.[273]

Aggravating and mitigating circumstances

13.171 In the Consultation Paper, the Commissions proposed that state and territory sentencing legislation should provide that the fact that an offence was committed in the context of a family relationship should not be treated as a non-mitigating factor in sentencing.[274]

13.172 The Commissions also asked stakeholders whether:

  • the commission of an offence in the context of a family relationship should be prescribed in state and territory sentencing legislation as an aggravating factor;
  • if so, whether making a specific link between a family relationship and the escalation of violence would be an appropriate model; and
  • which family relationships should be taken into account for the purposes of prescribing a family relationship as either a non-mitigating or an aggravating sentencing factor.[275]
A family relationship as an aggravating factor in sentencing

13.173 Several stakeholders supported the treatment of a family relationship between the offender and the victim as an aggravating factor in sentencing, however no consistent rationale was advanced for this position.[276] Some stakeholders suggested that such an approach would ensure the recognition of the serious nature of family violence and, in doing so, perform an educative function.[277] Others suggested that it would recognise the exploitation of a relationship of trust between the offender and the victim.[278] Easteal supported an aggravated sentencing factor in the form of repeated sexual assaults committed in the family violence context. While expressing reservations about ‘gradating’ violence, Easteal supported a linkage between a family relationship and the escalation of violence over time as a basis for aggravation.[279]

13.174 The Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS) favoured the use of a non-mitigating sentencing factor and an aggravated offence, but suggested that an aggravating factor in sentencing would be appropriate in cases where there is no charge or conviction on an aggravated offence.[280]

13.175 Other stakeholders opposed the designation of a family relationship as an aggravated sentencing factor for various reasons. The NSW ODPP considered the range of aggravating factors currently available under NSW sentencing legislation to be sufficient. It suggested that an additional requirement of a family relationship may duplicate existing sentencing factors, and would introduce the additional complexity of defining a family relationship.

13.176 Other submissions suggested that the mere existence of a family relationship should not constitute an aggravating factor.[281] Stubbs commented that this approach would involve weighing the seriousness of offences committed against family members with those committed against strangers exclusively on the basis of the relationship. Stubbs suggested that a preferable basis for aggravation would be a course of conduct or the escalation of violence.[282]

13.177 The Queensland Law Society supported the enactment of an aggravated offence in the family violence context.[283] NAAJA emphasised the importance of judicial sentencing discretion based solely upon the objective seriousness of the particular case, rather than pre-defined circumstances of aggravation.[284]

A family relationship as a non-mitigating factor in sentencing.

13.178 Almost all submissions supporting the existence of a family relationship as an aggravating sentencing factor also supported its designation as a non-mitigating factor, without commenting expressly on issues of interaction between the two approaches.[285] Several other stakeholders supported a non-mitigating factor only.[286] In a joint submission, Domestic Violence Victoria and others supported the use of a non-mitigating sentencing factor in conjunction with an aggravated offence that is based upon a relationship of coercion and control between the offender and the victim.[287]

13.179 Notwithstanding this division of views on the appropriate interactions between reform options, two broad themes emerged from those submissions supporting the recognition of family relationships as a non-mitigating factor in sentencing: that the mere existence of a family relationship should not, of itself, diminish the seriousness of an offence;[288] and the concern that the severity of family-violence related offences—in particular sexual assaults—may be minimised if left entirely to judicial discretion.[289] Several other submissions supporting this proposal did so without explanation.[290]

13.180 Two stakeholders opposed the proposal on the basis that it may have unintended consequences for victims of family violence who are charged with offences—for example, social security fraud committed under duress, or offences against the person committed in the course of defending themselves against family violence.[291]

Sentencing guidance

13.181 In the Consultation Paper, the Commissions proposed that the Australian Government—in conjunction with state and territory governments, the National Judicial College of Australia, the Judicial Commission of NSW and the Judicial College of Victoria—develop and maintain the currency of a national model bench book on family violence, incorporating a section on sentencing family-violence related offences.[292] This proposal received widespread support from stakeholders.[293] Some submissions commented on the importance of community consultation—in particular with Indigenous Australians—in the development of this resource.[294] Several submissions suggested that the Canadian resource, Violence and Family Law in Canada: a Handbook for Judges,[295] would provide an instructive model for the development of similar tools in an Australian context.[296] Others supported the production of a model bench book as part of a national professional development program for judicial officers on family violence.[297]

13.182 Few stakeholders commented specifically on the appropriate body or bodies to develop and maintain the currency of a bench book—or whether it should be a ‘model’ resource for individual jurisdictions to adapt for their own use, or a single, national product to complement existing jurisdiction-specific resources. The Magistrates’ Court and the Children’s Court of Victoria expressed the view that:

We do not see this as a ‘model’ bench book, but rather a joint state/Commonwealth bench book addressing family violence, sexual assault and family law in all states and the Commonwealth. The bench book would require government funding but should be developed by a judicial college or commission.[298]

13.183 While supporting a bench book, Stubbs commented that the pursuit of a national approach may be time-consuming and should not preclude the updating of existing resources in individual jurisdictions.[299]

Summary of the key themes arising from submissions and consultations

13.184 The key theme emerging from submissions and consultations is that—while there is a broad consensus among stakeholders that there is scope to improve the recognition of the features and dynamics of family violence in sentencing—there is significant division about the appropriate form that such recognition should take. In particular, there is division about:

  • whether there is a need to reform either substantive sentencing laws,[300] practices[301] or both; and
  • the nature of any potential reforms—in particular, the content of any prosecutorial guidelines or training about the appropriate use of representative charges in the family violence context, and the substance of any statutory sentencing factors.[302]

13.185 In addition, the fact that many stakeholders supported a combination of options, without commenting on the relationship between them, requires further consideration of the issues of interaction considered below.

Interactions between sentencing reform options

13.186 Several submissions supported, without explanation, the recognition of a family relationship between the offender and victim as both an aggravating and non-mitigating factor in sentencing.[303] This raises questions about the legal possibility—and practical desirability—of such an approach.

Interactions between sentencing reform options and those on offences

13.187 Some submissions supported both the creation of aggravated offences committed in the context of family violence, and aggravating factors in sentencing basic offences—based upon the same circumstances of aggravation.[304] Another stakeholder suggested that courses of conduct should be recognised in substantive offences rather than in sentencing.[305] This raises questions of procedural fairness in sentencing, and policy questions about the appropriate means of recognising courses of conduct in the criminal law.

Interactions between sentencing reform options, existing sentencing laws and principles, and existing offences

13.188 Given the divergent approaches taken in state and territory sentencing legislation to both sentencing factors and aggravated offences, any uniform sentencing reforms will inevitably raise jurisdiction-specific issues. For example, as one submission suggested, the recognition of new family-violence related sentencing factors may duplicate, or create inconsistencies with, existing sentencing factors in some jurisdictions.[306]

13.189 Similarly, in those jurisdictions with aggravated offences relevant to the family violence context, the imposition of new sentencing factors may duplicate the elements of aggravated offences.

Commissions’ views

Recognising courses of conduct in sentencing

Representative charges

13.190 In the Consultation Paper, the Commissions proposed that—to the maximum extent possible in criminal matters involving a course of family-violence related conduct—police and prosecutors should be encouraged to pursue the option of using representative charges as a way of presenting a course of conduct to the court.

13.191 Two issues emerge from this proposal. First, the reference to the use of representative charges to the ‘maximum extent possible’ raises the policy question of the circumstances in which it is appropriate to use representative charges in the prosecution of family-violence related offences. The second issue is the implementation of any such policy position by way of prosecutorial guidelines, education and training.

13.192 The Commissions do not make any recommendations in respect of the policy underlying the use of representative charges in the prosecution of family-violence related offences. Representative charging is properly a matter for prosecutorial discretion in individual cases, based upon an assessment of the evidence and the public interest. The Commissions agree that the matters of concern identified by stakeholders—including the efficient conduct of trials and the maintenance of procedural fairness towards accused persons—are relevant to the exercise of prosecutorial discretion. Any presumptive policy position favouring the use or non-use of representative charges in the family violence context would undermine such discretion, and may produce outcomes that are contrary to the public interest. Similarly, the Commissions consider that decisions to pursue alternatives to representative charges—such as ‘charging all charges’ or relying upon course of conduct-based offences where available—must be made on a case-by-case basis.

13.193 The Commissions’ reference to the use of representative charges ‘to the maximum extent possible’ is directed towards encouraging the routine consideration of representative charges in the prosecution of family-violence related offences within the existing decision-making framework, to ensure that they are used wherever appropriate. Prosecutorial guidelines, education and training on the use of representative charges in the family violence context are an appropriate means of developing expertise and promoting consistency in prosecutorial decision-making in this context. The Commissions acknowledge that charge negotiations and negotiations relating to statements of agreed facts are integral to the use of representative charges. These are appropriately the subject of prosecutorial guidelines, education and training in the family violence context. Recommendation 13–2 below reflects these matters. Similarly, the Commissions acknowledge the importance of professional education and training for criminal defence lawyers in conducting charge negotiations and negotiations as to agreed statements of facts in the family violence context.[307]

13.194 The Commissions do not make any recommendations as to whether an admitted or proven course of conduct should be taken into account to place the individual offences charged in a higher range of objective seriousness. While such an approach may be beneficial in enabling sentencing courts to consider family-violence related offending in its full context, the Commissions acknowledge that such an approach will have ramifications beyond the parameters of family violence.

Statutory sentencing factors.

13.195 The Commissions do not make any recommendations about the statutory recognition of a course of conduct as a sentencing factor. While acknowledging the substantial support from stakeholders for this measure, the Commissions consider that it would be premature for two reasons. First, it would be necessary to address the uncertainty identified in ALRC Report 103 about the application of such a provision to uncharged conduct. Secondly, as the provision would be one of general application, it would be necessary to consider its operation beyond the family violence context.

A family relationship as an aggravating or non-mitigating sentencing factor

13.196 The Commissions maintain their views expressed in the Consultation Paper that the existence of a family relationship between an offender and a victim should be prescribed as a non-mitigating factor in sentencing, rather than an aggravating factor.

A family relationship should not be an aggravating factor in sentencing

13.197 The Commissions recommend that a family relationship between the offender and the victim should not be prescribed as an aggravating sentencing factor per se for three reasons. First, while acknowledging the potential educative and denunciatory function of an aggravating sentencing factor, the Commissions have reservations about introducing a legislative requirement that would remove judicial sentencing discretion. Consistent with the Commissions’ position on aggravated offences, the universal treatment of a family relationship as an aggravating factor could mandate higher penalties in circumstances where they are not just and appropriate—for example, in the sentencing of child offenders or persons with a mental illness.

13.198 Secondly, the Commissions agree that the designation of a family relationship as an aggravating factor in sentencing is too blunt an instrument to recognise the nature and dynamics of family violence. Such a provision would capture criminal conduct committed outside the family violence context—that is, where the relevant behaviour does not involve elements of coercion or control. Such an approach would also elevate the gravity of violence committed against a family member solely on the basis of the relationship. The Commissions consider that such an approach would undesirably require a value judgment about the relative severity of offences committed against family members, as opposed to those committed against strangers, notwithstanding that the relevant conduct may be identical.

13.199 Thirdly, the Commissions agree that the prescription of a family relationship as an aggravated sentencing factor may involve the duplication of existing sentencing factors—for example, the commission of an offence in the home of another person, in the presence of a child or in the abuse of a relationship of trust or authority. The Commissions agree that such factors already ‘address the evil of the offending in the sense that the perpetrator is someone known and trusted and the victim is not safe within their home’.[308]

A family relationship as a non-mitigating factor in sentencing

13.200 The Commissions consider that it would be appropriate for sentencing legislation to provide expressly that the commission of an offence in the context of a family or domestic relationship should not be treated as a mitigating factor. The Commissions agree that the mere existence of a family relationship should not, of itself, diminish the seriousness of an offence. To treat such factors as mitigating would undesirably appear to trivialise family violence.

13.201 The Commissions acknowledge concerns expressed by stakeholders that this approach may preclude the recognition of a family relationship as a mitigating factor in some circumstances in which mitigation may be appropriate. This could include, for example, family violence victims who commit crimes under duress or in the course of self-defence. However, the Commissions consider that the existence of a family relationship is not the relevant mitigating factor in such cases, but rather the circumstances of duress or self defence. The recognition of a family relationship as a non-mitigating factor would not displace existing sentencing discretion. In addition, the commission of an offence under duress or in self-defence would ordinarily form the basis of a defence, and may inform prosecutorial decisions not to lay charges or prosecute such offences.

13.202 Accordingly, the Commissions endorse the ALRC’s view in ALRC Report 103 that sentencing legislation should not distinguish between aggravating and mitigating factors, but rather prescribe factors that should not be treated as either aggravating or mitigating.

13.203 However, the Commissions acknowledge that such an approach is contrary to the approaches taken in some state and territory sentencing legislation. If jurisdictions continue the practice of prescribing aggravating and mitigating sentencing factors, the Commissions consider that such factors must target the dynamics of family violence with greater precision than the mere existence of a family relationship. These factors may include, for example, the abuse of a relationship of trust or authority between the offender or the victim, the commission of an offence in a person’s home, or the commission of an offence as part of a course of conduct—provided that the application or otherwise of such a provision to uncharged conduct is made clear.

13.204 The Commissions do not make any formal recommendations about specific aggravating factors that may apply in the family violence context, should jurisdictions continue the practice of expressly designating aggravating and mitigating factors. In part, this is because it would be necessary to consider the potential application of such factors beyond the family violence context. In addition, a uniform or nationally consistent approach would be a complex exercise requiring significantly further consideration, given the divergent approaches taken by individual jurisdictions to aggravating sentencing factors and aggravated offences.

13.205 In particular, consideration of a uniform or consistent approach would require a review of the aggravated offences and sentencing factors in individual jurisdictions, in order to identify and avoid potential duplication. This would be necessary to:

  • prevent ‘double counting’ where a particular circumstance constitutes both an element of an aggravated offence and an aggravated sentencing factor;
  • avoid infringing the De Simoni principle, which would operate to prevent a sentencing court from taking into account aggravating sentencing factors that also comprise the elements of a more serious offence; and
  • ensure that any new aggravating sentencing factors do not duplicate or contradict existing provisions.

13.206 Given the jurisdiction-specific nature of these reviews, the Commissions consider that they are matters for further consideration by state and territory governments, under the auspices of a national coordinating body such as SCAG.

13.207 The Commissions consider, however, that if jurisdictions continue the practice of designating certain sentencing factors as aggravating, it would be preferable for such factors to be capable of applying equally to family and non-familial violence, for example, the commission of an offence in abuse of a relationship of trust or authority.

The relationship between aggravating and non-mitigating sentencing factors

13.208 The Commissions note that several submissions favoured the recognition of a family relationship between the offender and victim as both an aggravating and non-mitigating sentencing factor. However, the Commissions consider that it is not possible to mandate the same circumstance as both aggravating and non-mitigating. The designation of an aggravating factor would operate to increase an offender’s culpability and justify a higher maximum penalty in all cases. The same factor cannot simultaneously be treated as a basis for neither increasing nor decreasing culpability. However, it may be possible for a family relationship to be recognised as a non‑mitigating factor and another family-violence related circumstance, for example, abuse of trust, to be considered an aggravating factor.

The relationship between sentencing factors and offences

13.209 Some stakeholders proposed various combinations of new sentencing factors and aggravated offences. As identified in the discussion of submissions and consultations above, these included:

  • the creation of an aggravating sentencing factor and aggravated offences based upon the same circumstance of aggravation—namely, a family relationship—with the intention that the aggravating sentencing factor would operate only in those cases where there is no charge or conviction upon an aggravated offence;[309]
  • the creation of a non-mitigating sentencing factor, and the creation of aggravated offences, both of which are based upon the same circumstance—namely a family relationship;[310] and
  • the creation of aggravated offences based upon a relationship of coercion and control between the victim and the offender, and the designation of a family relationship as a non-mitigating sentencing factor.[311]

13.210 The Commissions emphasise the importance of recognising potential interaction issues arising from the De Simoni principle and the avoidance of double counting. In particular, the Commissions make the following observations on proposed combinations:

  • the De Simoni principle would preclude the creation of an aggravated sentencing factor that operates in those cases where there is no charge or conviction upon an aggravated family-violence related offence that is based upon the same circumstance of aggravation. In such cases, the offender should be charged with the aggravated offence;[312]
  • the De Simoni principle would, however, technically permit a non-mitigating sentencing factor also to form the basis of an aggravated offence,[313] however the Commissions question the utility of this approach. Where an offender is charged with an aggravated offence, the circumstance of aggravation self-evidently cannot be taken into account as a mitigating factor in sentencing. The Commissions reiterate their reservations about the prescription of a family relationship as a circumstance of aggravation in either offences or sentencing;
  • it would be possible for an aggravated offence to operate in conjunction with an aggravating sentencing factor, where the respective circumstances of aggravation are purposively distinct;[314] and
  • it would not be possible, however, for an aggravated offence to operate in conjunction with an aggravated sentencing factor where the circumstances of aggravation are identical, or purposively the same. This would result in the double counting of the circumstances of aggravation of the offence.

Sentencing guidance

13.211 The Commissions’ view remains 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. Such a resource could draw attention to the particular features and dynamics of family violence of which judicial officers should be aware in sentencing. It would also consolidate the guidance contained in existing case law and research and present it in an accessible format. Such guidance would promote both national consistency and consistency within individual states and territories. This matter is the subject of Recommendation 13–1(b) below.

13.212 In particular, as noted in Chapter 12, there is merit in providing courts with guidance about particular issues arising in sentencing for breaches of protection orders. The Commissions consider there would be merit in providing courts with guidance about the particular repercussions on victims of imposing fines on offenders for family-violence related offences. The Commissions further consider that a national bench book could improve consistency in the identification and consideration of relevant sentencing factors in the family violence context.

13.213 The Commissions agree with those stakeholders who emphasised the importance of a participatory and consultative approach to the development of a national bench book—including with Indigenous Australians. As discussed in Chapter 31, the Commissions acknowledge the importance of recognising the particular impacts of family violence upon persons identifying with specific cultural, linguistic and social groups.

13.214 The Commissions also concur that the judicious use of existing international resources would assist in identifying best practice and applying it in the Australian context. In this respect, the Canadian bench book, Violence and Family Law in Canada: a Handbook for Judges, may provide a useful starting point for the development of an Australian resource.[315]

13.215 The Commissions agree with the submission of the Magistrates’ Court and the Children’s Court of Victoria that there is merit in a single, national resource consolidating all relevant state, territory and Commonwealth laws.[316] This approach would promote consistency and the sharing of experience to a greater extent than would be possible using jurisdiction-specific resources. The Commissions acknowledge, however, that such an initiative may be time and resource intensive. The development of a national bench book should not preclude the ongoing updating of existing resources in individual jurisdictions. Rather, it should be an additional, complementary resource. The Commissions further consider that it would be desirable for existing state and territory judicial resources to cross-refer to the national bench book to promote awareness of this resource.

Recommendation 13–1 The national family violence bench book (see Rec 31–2) should include a section that:

  1. provides guidance about the potential relevance of family-violence related evidence to criminal offences and defences—for example, evidence of a pre-existing relationship between the parties, including evidence of previous violence; and
  2. addresses sentencing in family violence matters.

Recommendation 13–2 Federal, state and territory police, and Commonwealth, state and territory directors of public prosecution respectively, should ensure that police and prosecutors are encouraged by prosecutorial guidelines, and training and education programs, to use representative charges wherever appropriate in family-violence related criminal matters, where the charged conduct forms part of a course of conduct. Relevant prosecutorial guidelines, training and education programs should also address matters of charge negotiation and negotiation as to agreed statements of facts in the prosecution of family-violence related matters.

Recommendation 13–3 State and territory sentencing legislation should provide that the fact that an offence was committed in the context of a family relationship should not be considered a mitigating factor in sentencing.

 

 

 

[187] See Ch 3.

[188]Comment on ALRC Family Violence Online Forum: Women’s Legal Service Providers.

[189] The term ‘concurrent’ refers to sentences for multiple offences to be served at the same time. The term ‘cumulative’ refers to sentences for multiple offences to be served one after the other.

[190]Crimes (Sentencing) Act 2005 (ACT) s 33.

[191]Criminal Law (Sentencing) Act 1988 (SA) s 7(1)(b)(ii).

[192]Crimes Act 1914 (Cth) s 16A sets out factors a court must take into account in the sentencing of federal offenders.

[193]Weininger v The Queen (2003) 212 CLR 629, 647. The totality principle is relevant to the sentencing of offenders for multiple offences. It ensures that an offender who is sentenced for multiple offences receives an appropriate sentence overall and not a ‘crushing sentence’. See Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [5.12]–[5.15].

[194]Weininger v The Queen (2003) 212 CLR 629, 665.

[195] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [6.61], [6.65]–[6.66], Rec 6–1.

[196] See, eg, N Cowdery, ‘Negotiating with the DPP’ (Paper presented at Legal Aid Commission of NSW Criminal Law Conference, Sydney, 3 August 2006).

[197]R v D (1997) 69 SASR 413, 419. This approach has also been adopted by the NSW Court of Criminal Appeal. See, eg, R v JCW (2000) 112 A Crim R 466, [67]–[68]. However, the Queensland Court of Appeal has rejected this approach. See R v D [1996] 1 Qd R, but cf R v Bettridge (Unreported, Queensland Court of Appeal, 27 May 1998). This matter is discussed below.

[198]Director of Public Prosecutions v CPD 2 (2009) 22 VR 533, 542, citing Director of Public Prosecutions v McMaster [2008] 19 VR, 202 and R v CJK (2009) 22 VR 104, 111. See also R v LFJ [2009] VSCA, [8].

[199]R v Bukvic [2010] SASC 195, [48].

[200]Giles v Director of Public Prosecutions [2009] NSWCCA, [67]–[68] (Basten JA), [85]–[86] (Hulme JA), [102]–[104] (Johnson JA).

[201]R v D [1996] 1 Qd R.

[202]R v Bettridge (Unreported, Queensland Court of Appeal, 27 May 1998).

[203] For example, Sentencing Act 1991 (Vic) s 5(2)(g); Penalties and Sentences Act 1992 (Qld) s 9(2)(g).

[204]Sentencing Act 1995 (WA) s 6(2)(c), (d).

[205] Although the Sentencing Act 1995 (WA) s 8 provides that a plea of guilty, and facilitation by the offender of criminal property confiscation in certain cases are mitigating factors.

[206] See, eg, Sentencing Act 1995 (WA) s 8(3) and Crimes (Sentencing) Act 2005 (ACT) s 34(2). See, further, Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [6.186], Rec 6–6.

[207]Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.

[208] Ibid s 21A(2)(d), (ea), (eb), (k).

[209]Raczkowski v The Queen [2008] NSWCCA , [46].

[210]Kennedy v The Queen (2008) 181 A Crim R 185, [8].

[211]Family Violence Act 2004 (Tas) s 13(a).

[212] Parliament of Australia—Parliamentary Library, Domestic Violence in Australia: An Overview of the Issues (2003, updated 2006).

[213]Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ed).

[214]R v MFP [2001] VSCA , [20].

[215]Criminal Code 1985 RSC c C–46 (Canada) s 718.2(a)(ii). It is also an aggravating factor if the person abused a position of trust or authority in relation to the victim: s 718.2(a)(iii).

[216]Sentencing Act 2002 (NZ) s 9A. Section 9 lists general aggravating factors, some of which may be relevant to family violence, such as an abuse of power or authority.

[217] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [6.153], [6.157], [6.159].

[218] Sentencing Guidelines Council, Overarching Principles: Domestic Violence (2006).

[219] Ibid.

[220] Ibid, 4–5.

[221] Ibid, 5–6.

[222] Ibid, 6.

[223] Judicial Commission of New South Wales, Sentencing Bench Book (2009) <www.judcom.nsw
.gov.au/publications/benchbks/sentencing/index.html> at 21 February 2010; Judicial College of Victoria, Victorian Sentencing Manual (2009). For a brief overview of bench books—including those that deal with ethnic, gender and cultural issues, such as the Aboriginal Bench Book for Western Australian Courts: see Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), 498–500.

[224] L Armytage, ‘Developing Bench Books for Tribunals: Some Guidelines’ (Paper presented at Sixth Annual Australasian Institute of Judicial Administration Conference, Sydney, 5 June 2003), 2.

[225]R v Forbes (2005) 160 A Crim R 1, [72]–[76].

[226] Judicial education and use of bench books is further discussed in Ch 31.

[227] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 121.

[228]Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 4; Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA) ss 143, 143A; Criminal Law (Sentencing) Act 1988 (SA) ss 29A–29C.

[229] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [21.22].

[230] R Johns, Sentencing Law: A Review of Developments in 1998–2001 (2002), 25–26.

[231] P Byrne, ‘Guideline Sentencing: A Defence Perspective’ (1999) 11 Judicial Officers’ Bulletin 81, 81.

[232]Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357.

[233]Wong v The Queen (2001) 207 CLR 584.

[234] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [21.37]; see also [21.28]–[21.35].

[235] The Full Court of the South Australian Supreme Court has considered, and rejected, one application for such a judgment: R v Payne (2004) 89 SASR 49. The Western Australian Supreme Court has also rejected applications for such a judgment: Yates v Western Australia [2008] WASCA ; Herbert v The Queen (2003) 27 WAR 330; Jones v The Queen [1998] WASCA .

[236] Supreme Court of New South Wales, Guideline Judgments <www.lawlink.nsw.gov.au/lawlink/
supreme_court/ll_sc.nsf/pages/SCO_guidelinejudg> at 1 April 2010.

[237] J Anderson, ‘Guideline Judgments and Standard Minimum Sentencing: An Uneasy Alliance in the Way of the Future’ (Paper presented at Sentencing: Principles, Perspectives and Possibilities Conference, Canberra, 10 February 2006).

[238] Consultation Paper, Questions 7–5, 7–6, 7–7.

[239] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010, 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; Confidential, Submission FV 164, 25 June 2010.

[240] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; 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.

[241] National Legal Aid, Submission FV 232, 15 July 2010; 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. cf Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 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.

[242] Consultation Paper, Proposal 7–1.

[243] 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.

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

[245] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[246] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 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.

[247] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[248] Commonwealth Director of Public Prosecutions, Submission FV 76, 2 June 2010.

[249] Office of the Director of Public Prosecutions (Cth), Prosecution Policy for the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process, [2.19]. See also [2.20]—circumstances in which a less serious charge may be favoured.

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

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

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

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

[254] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010. The Department of Premier and Cabinet (Tas) also indicated, without further elaboration, that courts in Tasmania are taking courses of conduct into account in sentencing family-violence related offences: Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

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

[256] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[257] National Legal Aid, Submission FV 232, 15 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; Local Court of NSW, Submission FV 101, 4 June 2010.

[258] Consultation Paper, Proposal 7–1.

[259] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), [7.38]–[7.40], Question 7–6.

[260] Ibid, Question 7–8.

[261] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; M Payne, Submission FV 193, 28 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Confidential, Submission FV 184, 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; National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.

[262] National Legal Aid, Submission FV 232, 15 July 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[263] National Legal Aid, Submission FV 232, 15 July 2010; Local Court of NSW, Submission FV 101, 4 June 2010, which cited the same reason as ground of opposition to the increased use of representative charges.

[264] Law Society of New South Wales, Submission FV 205, 30 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[265] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[266] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.

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

[268]Giles v Director of Public Prosecutions [2009] NSWCCA.

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

[270] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

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

[272] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; 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; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; N Ross, Submission FV 129, 21 June 2010.

[273] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[274] Consultation Paper, Proposal 72.

[275] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 7–9. The issue of recognising categories of family relationships for the purposes of criminal laws is considered in Ch 14.

[276] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; P Easteal, Submission FV 38, 13 May 2010.

[277] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 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.

[278] National Legal Aid, Submission FV 232, 15 July 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.

[279] P Easteal, Submission FV 38, 13 May 2010.

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

[281] J Stubbs, Submission FV 186, 25 June 2010; Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

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

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

[284] Law Society of New South Wales, Submission FV 205, 30 June 2010; North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010.

[285] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; P Easteal, Submission FV 38, 13 May 2010.

[286] National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 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; Confidential, Submission FV 171, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; N Ross, Submission FV 129, 21 June 2010.

[287] 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.

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

[289] P Easteal, Submission FV 38, 13 May 2010. See also Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010, which commented on the use of judicial discretion in relation to aggravating factors in sentencing. AVPLS stated that, in its experience in Victoria, the recognition of family violence as an aggravating factor depends largely on the sensibilities of individual judicial officers.

[290] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Confidential, Submission FV 184, 25 June 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; Confidential, Submission FV 171, 25 June 2010; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; N Ross, Submission FV 129, 21 June 2010.

[291] J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[292] Consultation Paper, Proposal 7–3.

[293] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 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; No To Violence Male Family Violence Prevention Association Inc, Submission FV 136, 22 June 2010; N Ross, Submission FV 129, 21 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010; P Easteal, Submission FV 38, 13 May 2010.

[294] Confidential, Submission FV 184, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[295] The Canadian bench book is considered in further detail in Ch 31.

[296] National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Queensland, Submission FV 185, 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; Victorian Government, Submission FV 120, 15 June 2010.

[297] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Victorian Government, Submission FV 120, 15 June 2010. A model bench book and a national professional development program were recommendations of the National Council. See National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009).

[298] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

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

[300] For example, statutory sentencing factors.

[301] For example, the use of representative charges, and measures directed towards the application of existing sentencing laws and principles such as sentencing guidance.

[302] That is, whether a family relationship between the offender and victim—or some other circumstance—should constitute an aggravating or non-mitigating sentencing factor; and whether sentencing legislation should expressly recognise courses of conduct as a sentencing factor, and if so how—for example, how uncharged or non-criminal acts of family violence should be treated.

[303] See, eg: National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; P Easteal, Submission FV 38, 13 May 2010.

[304] See, eg, Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Confidential, Submission FV 164, 25 June 2010.

[305] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

[306] Ibid.

[307] Issues of training and education are considered in Ch 31. Further issues of relevance to the prosecution of family-violence related offences are considered in Ch 32 on specialisation.

[308] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.

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

[310] Ibid.

[311] 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.

[312] As proposed in Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[313] As proposed in Ibid.

[314] As proposed in 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.

[315] See also Ch 31.

[316] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.