Domestic violence offences

[63-500] Introduction

Domestic violence is widely regarded as a blight on civil society. There has been a renewed focus on the prevalence of the problem (Australian Law Reform Commission, Family Violence — A National Legal Response, ALRC Report 114 (Final Report), 2010), increased funding (see E Partridge, “Baird government’s $60m package targets domestic violence”, Sydney Morning Herald, 14 Oct 2015) and various grass root attempts to effect cultural change (White Ribbon Australia, www.whiteribbon.org.au).

The court in Xue v R [2017] NSWCCA 137 regarded the judge’s remarks (extracted at [42]) about the courts’ and the community’s concern at the level of domestic violence in the community as “timely and appropriate”: Xue v R per Hoeben CJ at CL at [53], Bathurst CJ and McCallum J agreeing.

A court sentencing an offender for an offence committed in what is loosely described as a “domestic context” must apply specifically developed sentencing principles.

See also Murders committed in context of domestic violence at [30-047].

[63-505] Statutory framework

Definitions of “personal violence offence” and “domestic violence offence” are found in ss 4, 5, 11 Crimes (Domestic and Personal Violence) Act 2007. These definitions are used as a basis for applying provisions in the Crimes (Sentencing Procedure) Act 1999 such as those discussed below.

The definition of “domestic violence offence” was amended by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016. It is defined in s 11 Crimes (Domestic and Personal Violence) Act as an offence committed against a person with whom the offender has (or has had) a domestic relationship, being:

(a)

a personal violence offence or

(b)

an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c)

an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).

“Domestic relationship” is broadly defined in s 5. The definition of “personal violence offence” in s 4 includes most of the assault and wounding offences referred to in the list in Assault, wounding and related offences at [50-000]. Section 12(2) provides that if a person pleads guilty to an offence or is found guilty of an offence and the court is satisfied that the offence was a domestic violence offence, the court is to direct that the offence be recorded on the person’s criminal record as a domestic violence offence.

The Crimes (Sentencing Procedure) Act 1999 imposes several requirements on a court sentencing an offender for a domestic violence offence.

When a court finds a person guilty of a domestic violence offence, it must impose, under s 4A(1), either:

  • a sentence of full-time detention, or

  • a supervised order (being an intensive correction order (ICO), community correction order (CCO) or conditional release order (CRO) that includes a supervision condition).

However, the court may impose a different sentence if satisfied that it is more appropriate in the circumstances, and gives reasons for reaching that view: s 4A(2).

Additional requirements designed for the protection and safety of victims are set out in s 4B:

  • An ICO cannot be imposed unless the court is satisfied that the victim of the domestic violence offence, and any other person with whom the offender is likely to reside, will be adequately protected (whether by ICO conditions or otherwise): s 4B(1)

  • A home detention condition cannot be imposed if the court reasonably believes the offender will reside with the victim of the domestic violence offence: s 4B(2)

  • The court must consider the victim’s safety before making either a CCO or CRO for a domestic violence offence: s 4B(3).

See also Intensive Correction Orders (ICOs) (alternative to full-time imprisonment) at [3-600]ff, Community Correction Orders (CCOs) at [4-400]ff and Conditional Release Orders (CROs) at [4-700]ff.

In addition, s 39 Crimes (Domestic and Personal Violence) Act 2007 relevantly provides that, on convicting an offender of a domestic violence offence, a court must make a final apprehended domestic violence order for the protection of the victim, regardless of whether an interim apprehended violence order has been made or whether an application for an apprehended violence order has been made, unless satisfied that an order is “not required”.

Domestic violence orders made in one State or Territory are now recognised in all other Australian jurisdictions as a consequence of the national recognition scheme given statutory effect in Pt 13B Crimes (Domestic and Personal Violence) Act 2007 which enables the enforcement of the prohibitions and restrictions contained in interstate and foreign domestic violence orders.

[63-510] Sentencing approach to domestic violence

A comprehensive examination of the cases and legislation can be found in A Gombru, G Brignell and H Donnelly, Sentencing for domestic violence, Sentencing Trends & Issues No 45, Judicial Commission of NSW, June 2016.

The High Court in Munda v Western Australia (2013) 249 CLR 600 at [54]–[55] referred to the role of the criminal law in the context of domestic violence as including:

the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. …

… A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.

The High Court in The Queen v Kilic (2016) 259 CLR 256 at [21] recognised a societal shift in relation to domestic violence:

… current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.

In assessing the crime before it, the court in The Queen v Kilic treated the fact the respondent’s offence involved domestic violence as a distinguishing aggravating circumstance of significance and, at [28], referred to: “… the abuse of a relationship of trust which such an offence necessarily entails and which ... must be deterred”.

The denunciation of, and punishment for, “brutal” and “alcohol-fuelled” conduct in the context of a domestic relationship was considered to be particularly apt in Ngatamariki v R [2016] NSWCCA 155 at [73]. In Cherry v R [2017] NSWCCA 150, Johnson J at [78] (Macfarlane JA and Harrison J agreeing) said:

It is undoubtedly the case that the criminal law, in the area of domestic violence, requires rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.

See also DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [84]–[85], [107]–[108] where the court held that the sentences imposed for offences committed in a domestic violence context did not reflect the community interest in general deterrence.

The courts have recognised the special dynamics of domestic violence. A victim of a domestic violence offence is personally targeted by the offender and the offence is usually part of a larger picture of physical and mental violence in which the offender exercises power and control over the victim: R v Burton [2008] NSWCCA 128 at [97]. In most instances, the conduct typically involves aggression by men who are physically stronger than their victims, and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths: Patsan v R [2018] NSWCCA 129 at [39]–[40]; R v Edigarov (2001) 125 A Crim R 551 at [41].

Another common feature is that there may be a considerable delay between the offences and the victim making a complaint. However, such delay should not be held against a victim as it is a direct product of the nature of the offending. It would be incongruous for the offender to benefit from such delay: Hurst v R [2017] NSWCCA 114 at [132], see also [138].

The offender often has a genuine, albeit irrational, belief of being wronged by the victim and also believes the violence is justified: Xue v R [2017] NSWCCA 137 at [53]; Ahmu v R [2014] NSWCCA 312 at [83]. But a resort to violence is not justified even if the belief turns out to be correct: Xue v R at [53]; see also Efthimiadis v R (No 2) [2016] NSWCCA 9 at [86].

There is a continuing threat to the victim’s safety even where the victim becomes estranged from the offender: R v Dunn (2004) 144 A Crim R 180 at [47]. The victim may forgive the offender against their own interests: R v Glen (unrep, 19/12/94, NSWCCA); R v Rowe (1996) 89 A Crim R 467; R v Burton at [105]. Sentencing courts must treat such forgiveness with caution and attribute weight to general and specific deterrence, denunciation and protection of the community: R v Hamid (2006) 164 A Crim R 179 at [86]; Simpson v R [2014] NSWCCA 23 at [35]; R v Eckermann [2013] NSWCCA 188 at [55]; Ahmu v R at [83]. The attitude of the victim cannot interfere with the exercise of the sentencing discretion: R v Palu (2002) 134 A Crim R 174 at [37]. See DPP (NSW) v Vallelonga [2014] NSWLC 13 for a good example of the application of the above principles.

Particular care is required on the part of a court when it makes findings of fact concerning the aggravating factor that the victim was vulnerable. The judge erred in Drew v R (2016) 264 A Crim R 1 by observing that the victim was vulnerable using generalisations about a culture of silence and ostracism within Aboriginal communities in relation to domestic violence: Drew v R per Fagan J at [8], Gleeson JA agreeing at [1], N Adams J at [84]. Such a finding was not open on the evidence in the case: Drew v R at [3]–[4]. Further, the aggravating factor of vulnerability under s 21A(2)(l) Crimes (Sentencing Procedure) Act 1999 is only engaged where the victim is one of a class that is vulnerable by reason of some common characteristic: Drew v R at [8]. See N Adams J’s discussion of the cases in Drew v R at [75]–[78].

However, a finding that the victim was vulnerable in the more general sense of being under an impaired ability to avoid physical conflict with the offender or defend herself in the event of such conflict was well open on the evidence: Drew v R at [5], [8]. It was a circumstance of the offence, relevant to determining the appropriate sentence, that because of the victim’s emotional and intimate attachment to the offender she was less likely than any other potential victim to avoid him or put herself out of harm’s way: Drew v R at [7]. That individual vulnerability had, in practical terms, the same consequence for assessment of the objective seriousness of the offence: Drew v R at [8].

Domestic violence is addressed elsewhere in the publication as follows:

  • Purposes of sentencing at [2-240] To prevent crime by deterring the offender and other persons from committing similar offences: s 3A(b)

  • Victims and victim impact statements at [12-850] The relevance of the attitude of the victim — vengeance or forgiveness (Domestic violence)

  • Section 21A factors “in addition to” any Act or rule of law at [11-090] Section 21A(2)(d) — the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)

  • Particular offences

    • Break and enter offences at [17-050] The standard non-parole period provisions (Domestic violence)

    • Detain for advantage/kidnapping at [18-715] Factors relevant to the seriousness of an offence (Detaining for advantage and domestic violence)

    • Sexual assault at [20-775] Factors which are not mitigating at sentence (The relevance of a prior relationship)

    • Assault, wounding and related offences at [50-130] Particular types of personal violence (Domestic violence)

[63-515] Apprehended violence orders

In Browning v R [2015] NSWCCA 147 at [5], the court affirmed Spigelman CJ’s observations in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [20] concerning the objectives of the statutory scheme at the time which made provision for apprehended violence orders:

The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended Violence Orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.

See the Local Court Bench Book for procedures with regard to apprehended violence orders from [25-000]ff.

[63-518] Impact of AVO breaches on sentencing

Section 14(1) Crimes (Domestic and Personal Violence) Act 2007 provides for the offence of contravening an apprehended violence order (AVO). Section 14(4) provides:

Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.

An offence committed in breach of an AVO is a significant source of aggravation: Kennedy v R (2008) 181 A Crim R 185 at [8]; R v Macadam-Kellie [2001] NSWCCA 170 at [37]–[38]. Offences committed in breach of an AVO are not offences committed in breach of conditional liberty simpliciter; they breach a form of conditional liberty designed to protect the same victim from further attacks by the offender: Cherry v R [2017] NSWCCA 150 at [80]. It is also a significant aggravating factor under s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 if an offender commits offences whilst on conditional liberty for offences arising from breaches of an AVO order: Jeffries v R (2008) 185 A Crim R 500 at [91]; Browning v R [2015] NSWCCA 147 at [8].

Offences committed in breach of an AVO and the offence of breaching an AVO, involve separate and distinct criminality. There is no duplicity in imposing distinct sentences for each offence: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [131]. Breaches of an AVO should ordinarily be separately punished from an offence occurring at the same time. In Suksa-Ngacharoen v R at [132], when discussing the criminality inherent in a breach of an ADVO, Wilson J (Leeming JA and Bellew J agreeing) said:

The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship. If the authority of the courts in making these orders is simply ignored … the law and the courts are diminished, and the capacity for the courts to protect vulnerable individuals is impeded. Conduct which involves deliberate disobedience of a court order must be treated as serious, and should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle as set out in Pearce v The Queen (1989) 194 CLR 610.

[63-520] Stalking and intimidation

Section 13(1) Crimes (Domestic and Personal Violence) Act 2007 contains an offence of stalking or intimidating another person with the intention of causing the other person to fear physical or mental harm. Section 13(3) provides that a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. A person who attempts to commit such an offence is liable to the same penalty as if the person had committed the offence itself: s 13(5). The offence of intimidation is one of “specific intent” under s 428B Crimes Act 1900 and, therefore, an offender’s intoxication can be considered for the purposes of determining criminal liability: McIlwraith v R [2017] NSWCCA 13 at [39]–[42]. However, an offender’s intoxication at the time of the offence cannot be relied upon as a matter of mitigation at sentence: s 21A(5AA) Crimes (Sentencing Procedure) Act; see also Cherry v R at [81] in the context of self-induced intoxication because of drug use.

See [11-335] Special rule for intoxication.