The Local Court applies the sentencing principles developed by appellate courts in relation to domestic violence offences. However, associated with the requirement to make the necessary assessments and factual findings in a short period of time, there is not the same detailed consideration of case law as may occur in the District Court. In any event, some of those principles are of less relevance and for that reason have not been discussed below. One area concerns the delay between offending and complaint because in the Local Court, for example, the median time between the offence date and the date of sentence for domestic violence offences was 3.1 months during the two-year study period.⁸⁹

Deterrence, community protection and denunciation in s 3A of the CSP Act, are given significant weight when sentencing for offences of domestic violence.⁹⁰ In Munda v Western Australia, the plurality acknowledged that there was an argument general deterrence may have “little rational claim” when offences of violence are not premeditated and are committed in areas of significant social disadvantage but said that the role of the criminal law in this area:

The court went on to emphasise the importance of denunciation and the need for sentences which vindicated the victims, stating that:

What applying these principles means in a practical sense is that sentence patterns are likely to increase. The High Court in The Queen v Kilic⁹³ observed that sentence patterns for particular forms of offending could change over time to reflect changes in community attitudes and that:

The court found that the fact the respondent’s offending in that case involved domestic violence was a distinguishing aggravating circumstance of significance, observing that it was “…the abuse of a relationship of trust which such an offence necessarily entails … which … must be deterred”.⁹⁴ The abuse of a domestic relationship and the fact the particular power dynamic between an offender and a domestic violence victim requires that significant weight is given to general deterrence has been the subject of strong, and repeated, comments by the NSWCCA.⁹⁵ For example, in Diaz v R,⁹⁶ Garling J said:

In Patsan v R,⁹⁷ Adamson J observed that when making an assessment of the objective seriousness of a particular offence, it was not inappropriate for a sentencing court to refer to gender and broader patterns of criminal behaviour.⁹⁸ Such an approach was not contrary to the requirement in Muldrock v The Queen⁹⁹ that the objective seriousness of an offence was to be assessed without reference to matters personal to a particular offender but was to be determined by reference wholly to the nature of the offending. Her Honour concluded that for domestic violence offending, the relative strengths of offenders and victims gave context to the particular offending.

In Patsan v R, the male offender punched his girlfriend in the face causing serious fractures and jaw displacement. The sentencing judge had said "to strike a defenceless woman in the face with a forceful punch is particularly reprehensible” and found the offender "chose to assault the victim … because he was well aware she was incapable of any meaningful physical retaliation".¹⁰⁰

The offender’s sentence appeal was based on an asserted error by the judge emphasising the respective genders of the offender and the victim, using the offender as a scapegoat for domestic violence against women. This argument was rejected. The court concluded that the sentencing judge’s approach accorded with High Court authorities involving sentencing for domestic violence offences.¹⁰¹ Of the character of domestic violence offending, Adamson J said:

Justice Wilson’s statement in Yaman v R ¹⁰³ emphasising the significance of general deterrence within the abuse of the power dynamic involved in domestic violence offending and its gendered character has already been quoted on page 3 of this Trends.

While the Local Court, and the District Court when dealing with offences on appeal from that court, are dealing with offences which by their nature or facts may be perceived as less serious than those dealt with on indictment, in the published cases there are equally strong statements concerning the importance of deterrence and the need to protect vulnerable victims of offending of this kind.¹⁰⁴

In Perrin v R,¹⁰⁵ Haesler SC DCJ, when determining a sentence appeal, after referring to the appellant’s disregard for the authority of the courts in making an AVO and the corresponding diminished capacity of the court to then protect vulnerable individuals, said:

In R v Woods,¹⁰⁶ another decision of Haesler SC DCJ, his Honour recognised the significance of general deterrence observing that:

However, his Honour also said that incarceration can have a crime-producing effect, observing that “putting a violent misogynist in gaol with other violent misogynists is a particularly ineffective way of addressing the underlying causes of the crimes that he committed.¹⁰⁸”

In R v Rampling,¹⁰⁹ when dealing with an offence of recklessly inflict grievous bodily harm committed in a domestic violence context, the then Chief Magistrate, Henson DCJ said:

His Honour concluded that an ICO was not appropriate and sentenced the offender to 2 years imprisonment with a non-parole period of 18 months. Of the purposes of sentencing, his Honour said:

On appeal to the District Court, the head sentence was confirmed but the non-parole period was reduced to 13 months.¹¹¹

Where the state of an offender's mental health contributes to the commission of an offence, it is well recognised that the offender may not be an appropriate vehicle for general deterrence.¹¹² However, in recent years, this principle has been said to have less application in cases involving domestic violence offences.

In R v Quinn (No 3),¹¹³ the offender stabbed his partner in the neck and killed her after she told him she wanted to end their relationship. He then stabbed himself in the neck and chest causing quadriplegia. He suffered from obsessive compulsive disorder and borderline personality disorder which contributed to the offending. Although the sentencing judge accepted that the offender’s moral culpability was reduced because of his mental condition, his Honour concluded that general deterrence remained a significant sentencing factor. On appeal, the NSWCCA concluded there was no error in this approach, re-iterating the significance of general deterrence when sentencing for domestic violence offences.¹¹⁴ In Quinn v R,¹¹⁵ Hoeben CJ at CL (who gave the judgment of the court) referred to the societal shift in attitudes to domestic violence potentially requiring a change to current sentencing practices recognised by the High Court in The Queen v Kilic. His Honour said Kaderavek v R¹¹⁶ demonstrated part of the change in approach. In that case, Hamill J said that, in the circumstances of that case, where offences of violence were committed in a domestic relationship marred by repeated violence, the weight to be given to general deterrence remained substantial notwithstanding the applicant’s mental health conditions.

The impact of domestic violence in First Nations communities arises for consideration on sentence in two distinct ways — first as it relates to the need to deter similar offending in communities, and secondly as to the impact of exposure to domestic and family violence on an offender as a child.¹¹⁷ As to the latter, there is increasing recognition that exposure to such violence can manifest in intergenerational cycles of trauma, violence and disadvantage¹¹⁸ and that when First Nations children are exposed to such violence because of its compounded intergenerational effect, services which are both trauma-informed and trauma-specific are called for and can help achieve healing.¹¹⁹

In DPP v Darcy-Shillingsworth,¹²⁰ domestic violence offences were committed by a First Nations offender against a First Nations victim in a relatively small remote community. At first instance, for offences of recklessly causing grievous bodily harm, reckless wounding and assault occasioning actual bodily harm,¹²¹ the respondent was sentenced to community service and suspended sentences of imprisonment (penalties available at the time). The sentencing judge noted the violence occurred in a remote First Nations community with few organised social activities or “outlets for the pressures of life other than alcohol and some sport”, and stated “it is difficult for me as a white urban Australian to understand the dynamics of a very small and remote, mainly Aboriginal community”.¹²² In allowing the Crown appeal, Basten JA (Fagan J agreeing) said that not explaining how these factors were taken into account left open the possibility that the judge had engaged in impermissible assumptions to the effect that alcohol-fuelled violence in a remote Aboriginal community was to be treated more leniently than in other communities, and that First Nations victims of domestic violence were not to be accorded the same protection as were other victims.¹²³ However, Beech-Jones J (as his Honour then was) did not accept that such a construction was open, observing that the relevant passage could be understood as “simply referring to the difficulties that the sentencing judge experienced in determining how it was the respondent came to commit the offences that he did”.¹²⁴

In Bugmy v The Queen,¹²⁵ the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in every sentencing decision.

The challenges inherent in sentencing a First Nations offender against a background of systemic deprivation and experienced by both offenders and victims were addressed by Haesler SC DCJ in Perrin v R.¹²⁶ That case involved numerous, serious offences of domestic violence. His Honour, after considering the relevant case law and other sources,¹²⁷ said:

His Honour then proceeded to address the considerations arising from Bugmy v The Queen in relation to the effect on an offender of profound deprivation, but also recognised there may be countervailing factors, such as the protection of the community, which might reduce or eliminate its effect.¹²⁹

There is material which can be presented to a court sentencing a First Nation's offender for a domestic violence offence which can assist in addressing this dilemma. The report, Significance of culture to wellbeing, healing and rehabilitation,¹³⁰ which has been prepared to assist sentencing courts to apply the principles in Bugmy v The Queen, highlights the significance of culture to First Nations peoples and the importance of connecting such offenders to culturally-appropriate treatments to facilitate their prospects of rehabilitation. When such treatments are successful in a domestic violence context, the concomitant benefits are obvious.

Victim impact statements, when used or read out in sentence proceedings, give victims of particular domestic violence offences an opportunity to have the various impacts of the offending on them taken into account.¹³¹ The Local Court can receive such statements on sentence.

However, the attitude of a victim of domestic violence to such offending or towards the offender cannot interfere with the proper exercise of the sentencing discretion as sentence proceedings are not a private matter between the victim and the offender.¹³² Further, courts should be cautious when a victim of domestic violence expresses forgiveness for an offender and a desire to have their family reunited, because such victims may be actively pressured to forgive the offender or be compelled to do so for other reasons.¹³³

For example, in AC v R,¹³⁴ Schmidt J (Bathurst CJ and Wilson J agreeing) concluded that a statement from the 12-year-old child victim expressing support for the offender who had sexually assaulted her did not satisfy the definition of a “victim impact statement,” namely, “a statement containing particulars of … any personal harm suffered by the victim as a direct result of the offence,”¹³⁵ and therefore could not be taken into account on sentence.¹³⁶ Further, her Honour said the statement did not identify any personal harm suffered by the victim and that it could not be assumed there was no such harm, particularly when there was evidence of harm, which included an ectopic pregnancy and a miscarriage.¹³⁷ A submission that the applicant should fall into the category of an offender who receives the court’s compassion because of the attitude of the victim was rejected. Rather, the victim’s views revealed a lack of real understanding of the seriousness of the sexual and indecent assaults committed against her, and the potential ongoing consequences of that abuse on her future development. Compassion for the victim did not translate into a lesser sentence for the applicant.¹³⁸

By contrast, in Rossall v R,¹³⁹ when resentencing the applicant for domestic violence offences, Garling J (Bathurst CJ and Rothman J agreeing), while paying particular attention to the safety of the victim, who was the applicant’s wife from whom the applicant was separated, noted the victim was supportive of the applicant not being sentenced to full-time imprisonment.¹⁴⁰ Although his Honour found that this was not decisive, in the particular circumstances of that case including evidence of the positive steps the applicant had taken towards rehabilitation and the finding that he was unlikely to reoffend, it was an indication that the victim, who did not make a victim impact statement, did not have fears for her personal safety.¹⁴¹

Section 21A(2)(l) of the CSP Act states that it is an aggravating feature of an offence if the relevant victim was vulnerable because of their age or a disability, or because of their geographical isolation or their occupation. This section is concerned with the weakness of particular classes of victim and not with the threat posed by a particular class of offender.¹⁴²

Whether or not particular victims should be recognised to come from a particular class was considered in the context of the First Nations community in Drew v R.¹⁴³ In that case, Fagan J (Gleeson JA agreeing) said that a finding a victim was vulnerable on the basis of generalisations about a culture of silence and ostracism within First Nations communities in relation to domestic violence did not permit a finding that an offence was aggravated pursuant to s 21A(2)(l). By contrast, N Adams J observed that the serious issue of domestic violence in First Nations communities and the under-reporting of such violence may provide context to particular offending, and be relevant to the need for general deterrence and community protection, but said that unless there was evidence capable of establishing the victim in such a case is a member of a particular class of vulnerable victim, a finding that an offence was aggravated pursuant to s 21A(2)(l) of the CSP Act could not be made for that reason.¹⁴⁴

While the vulnerability of a victim of domestic violence is a relevant sentencing consideration, a court must exercise caution before making a specific finding of fact concerning the aggravating factor in s 21A(2).¹⁴⁵ However, this does not preclude the vulnerability of a victim being taken into account when assessing the objective seriousness of a particular offence. For example, in Drew v R,¹⁴⁶ Fagan J found it was an available inference from the facts that the victim was vulnerable in the general sense of being under an impaired ability to avoid physical conflict with the offender or to defend herself if conflict occurred. It was a circumstance of the offence, relevant to determining the appropriate sentence that because of her emotional and intimate attachment to the offender, she was less likely than any other potential victim to try to avoid him or put herself out of harm’s way.

Domestic violence (DV) offences are identified using a DV specific law part code created by the Commission for use by NSW justice sector agencies, including the police. The law part code is normally recorded at the time of charging.

The reliability of law part codes to accurately capture all DV-related offences depends not only on the individual recording the offence selecting the correct law part code, but also correctly identifying that the relevant relationship is one caught by the definition of a domestic relationship in s 5 of the CDVP Act and that the offence is a DV offence. There is always a risk, where multiple law part codes are available for an offence, that coding errors may occur. It was therefore decided to check the accuracy of the coding of DV offences, at least for those cases where there was a mix of DV and non-DV offences.¹⁵⁵ This involved cross-checking against source documents, where available, from JusticeLink.¹⁵⁶

A total of 7,604 offences (or 7.3% of all offences) were checked for accuracy. Of these, 68.8% were confirmed to be correctly coded as either a DV or non-DV offence, 13.8% were incorrectly coded¹⁵⁷ and it was not possible to confirm the status of 17.3% of the offences. The offences identified as incorrectly coded were corrected. During the correction process it was observed that, while not determinative, a sizeable proportion of domestic violence offences did not involve intimate partner relationships, although they were the majority.

A preliminary check of the conditions attached to ICOs, CCOs and CROs¹⁵⁸ was also undertaken.¹⁵⁹ Recording conditions such as requiring the offender to submit to supervision and additional conditions such as a period of home detention, electronic monitoring or community service work (CSW) for a specified number of hours was found to be reliable. However, there was inconsistency in the recording of other types of additional or further conditions. It was therefore decided to collect data for the conditions imposed in a sample of cases. Of the 12,300 offenders whose principal offence was a selected offence that included an additional or further condition imposed with a particular order, 837 were randomly selected.¹⁶⁰

Extensive corrections were made to the appeals data as a result of inconsistencies in the data concerning the type of appeal and recording outcomes of appeals.

The focus of the analysis in this Trends is on DV offenders¹⁶¹ and offences. Nevertheless, where there are sufficient cases, a comparison between DV and non-DV offences with regard to sentencing patterns and offender characteristics has been made if found to be significantly different.¹⁶²

In order to make meaningful comparisons between DV and non-DV offences, the latter were disaggregated into non-DV offences committed in either a DV setting¹⁶³ or a non-DV setting. This analysis (outlined in Appendix C) revealed statistically significant differences in the sentencing patterns that were consistent across the range of selected offences. Therefore, non-DV offences committed in a DV setting were excluded from the analysis on penalties when comparing non-DV offences with DV offences.

The analysis on appeals focuses on conviction and sentence appeals heard and determined in the District Court. Appeals that were withdrawn or not proceeded with (1,186 offences or 12.5%) and two cases where the appellant had died (3 offences) were excluded from the analysis, as were successful applications that resulted in a dismissal under the since repealed s 32 of the Mental Health (Forensic Provisions) Act 1990 (143 or 1.5% of offences).¹⁶⁴ In a small number of cases where more than one appeal against an offence was heard, the result for the final appeal was selected.

The term “median” refers to the sentence that lies in the middle of a range of values. “Mean” refers to the average value. The term “mode” indicates the most frequently occurring value or values. The percentages in parentheses following the mode indicate the proportion of offenders and/or offences given that value for the penalty.

In respect of penalty durations and fine amounts, the percentage falling within the middle 50% range of values is shown. The lower limit of this range is set at the first quartile (or 25th percentile) and the upper limit is set at the third quartile (or 75th percentile). This range shows the spread of values near the centre. The percentages in parentheses following the middle 50% range indicate the proportion of offenders and/or offences given that range of values for the penalty.

With respect to full-time imprisonment and ICOs, where an aggregate sentence under s 53A of the CSP Act was imposed, the term of sentence refers to the indicative sentence. The “aggregate/effective term” refers to the overall sentence and the "aggregate/effective NPP” refers to the overall non-parole period (full-time imprisonment only).¹⁶⁵

The term “supervised order” is an ICO, CCO or CRO that includes a supervision condition.¹⁶⁶

The abbreviation “pu” refers to penalty units. For the selected offences, the value of one penalty unit is equivalent to $110.¹⁶⁷

During the study period, 49,888 offenders were sentenced in the Local Court for 104,245 offences. Of these, 63,843 were DV offences (61.2%). While the majority of these were the selected offences (80.5%), there were 20,312 other offences (19.5%) finalised with a selected offence.

Just over 20% of the other offences (21.1%) were committed in a DV setting. Of these the most common was assault with intent to commit a serious indictable offence on certain officers¹⁶⁸ (14.6%), followed by possess prohibited drug¹⁶⁹ (13.3%) and use carriage service to menace, harass or offend¹⁷⁰ (12.9%). Other common offences were unlawful entry on inclosed lands¹⁷¹ (6.1%), attempt to stalk or intimidate with intent to cause fear of physical or mental harm¹⁷² (4.5%), resist, etc police officer in execution of duty¹⁷³ (4.1%) and assault police officer in execution of duty¹⁷⁴ (2.7%).

In total, the offences in this study accounted for only 18.0% of all offences, and 20.0% of all offenders, sentenced in the Local Court during the study period, but they encompass the overwhelming majority of DV offences.¹⁷⁵

An appeal against a conviction and/or sentence was lodged in the District Court in 3,438 cases (6.9%) for 9,474 offences (9.1%). The rate of severity appeals lodged for DV offences (7.9%) was significantly higher than for non-DV offences (6.5%).¹⁷⁶ In all appeals that proceeded, a conviction and/or sentence appeal was heard and determined for 8,142 offences (7.8%). There were 791 conviction appeals (9.7% of appeals or 0.8% of all offences) and 7,705 sentence severity appeals (94.6% of appeals or 7.4% of all offences).

Just over one-third (35.4%) of conviction appeals against an offence were allowed and almost two-thirds (64.6%) of severity appeals were allowed. While the success rate of conviction appeals was higher for DV offences (38.6%) compared with non-DV offences (29.9%),¹⁷⁷ severity appeals for non-DV offences (66.2%) had a higher success rate than for DV offences (63.7%).¹⁷⁸

There was only one Crown appeal against the inadequacy of the sentence imposed and it was dismissed.

Accordingly, of all sentences imposed in the Local Court during the study period for DV offences, successful conviction appeals constitute only 0.3% of the sentences imposed and successful severity appeals only 5.1%.

Gender: DV offenders were predominantly male (80.3%). This compares with 78.8% of non-DV offenders.¹⁷⁹

Age: The median age of DV offenders at the time of the offence was 34 years and the mean age was 35.4 years.¹⁸⁰ By comparison, the median and mean age of non-DV offenders was 33 years and 35.3 years respectively.¹⁸¹

Indigenous status: DV offenders identified as Aboriginal and Torres Strait Islander persons in 27.5% of cases.¹⁸² This compares with 24.9% of non-DV offenders.¹⁸³

Court location: Just over half of DV cases were finalised in Greater Sydney (51.2%); 38.1% were finalised in courts located in regional NSW;¹⁸⁴ and the remaining 10.7% were finalised in courts located in Newcastle (6.9%) or Wollongong (3.8%). Non-DV cases were less likely to be finalised in courts located in regional NSW (33.6%) and more likely to be finalised in Greater Sydney (56.4%).¹⁸⁵

Number of offences: Around half of DV offenders (49.8%) were sentenced for multiple offences: 24.7% were sentenced for two offences; 10.9% for three offences; 5.7% for four offences; and 8.6% for five or more offences.¹⁸⁶ Non-DV offenders were less likely to be sentenced for multiple offences (41.3%).¹⁸⁷

Plea: DV offenders pleaded guilty in 83.0% of cases.¹⁸⁸ This compares with 79.2% of non-DV offenders.¹⁸⁹

Prior record: Almost three-quarters of DV offenders (73.7%) had a prior criminal record,¹⁹⁰ including 24.9% who had previously served a sentence of full-time imprisonment.¹⁹¹ Non-DV offenders were less likely to have a prior record (70.2%).¹⁹²

Prior DV record: Almost half of DV offenders (44.4%) had a prior record of DV offending: 13.2% had previously served a sentence of full-time imprisonment for a DV offence and 31.2% had not.¹⁹³ Unsurprisingly, non-DV offenders were less likely to have a prior record of DV offending (24.8%): 7.9% with imprisonment and 16.9% without.¹⁹⁴

Breach offences: At the time of sentencing, 17.4% of DV offenders were re-sentenced for a breach offence, including 13.5% for a breach of a DV offence. Non-DV offenders were less likely to have a breach offence (11.4%), or a DV breach offence (6.5%).¹⁹⁵

The penalties that may be imposed by the court are set out in Pt 2 of the CSP Act. Penalties imposed under the Act may be custodial or non-custodial. Custodial sentences include full-time imprisonment¹⁹⁶ and ICOs.¹⁹⁷ Non-custodial sentences include CCOs,¹⁹⁸ CROs with conviction¹⁹⁹ or without conviction,²⁰⁰ dismissal of charges²⁰¹ and conditional discharges,²⁰² conviction with no other penalty²⁰³ and fines.²⁰⁴ While fines can be imposed in addition to another penalty higher in the sentencing hierarchy, the analysis concerns fines given as the primary penalty only.

As indicated previously, when comparing sentencing patterns for DV and non-DV offences, non-DV offences committed in a DV setting have been excluded from the analysis. Figure 1 shows the distribution of penalty types imposed for DV and non-DV offences (whether or not they were the principal offence).

Figure 1. Distribution of penalty types for all selected offences by DV offence group finalised in the Local Court in the study period (N=83,053)

Figure 1 shows that DV offences attracted more severe penalties than non-DV offences,²⁰⁵ receiving higher rates of full-time imprisonment (18.0% compared with 12.6%), ICOs (9.8% compared with 8.1%), CCOs (39.0% compared with 35.3%) and CROs with conviction (8.1% compared with 7.8%).

The differences in the sentences displayed in Figure 1 do not take into account any offender characteristics, the offence type, the domestic relationship, the degree of harm caused to the victim, or other factors relevant to the offending. As such, other factors may have a greater influence on sentencing patterns than simply whether or not the particular offence is a DV offence.

Community correction orders (CCOs) were the most common penalty, imposed in 39.0% of DV offences. The median CCO duration was 12 months, as was the mode (44.7%). The majority of CCOs imposed (72.4%) were in the middle 50% range of 12 to 18 months duration. While the median, mode and middle 50% range were the same for non-DV offences, there was a significant difference in the distribution with 48.1% of DV offences receiving durations longer than 12 months compared with 44.8% of non-DV offences.²⁰⁶ Supervision was a condition of almost three-quarters of CCOs (72.8%), significantly higher than for non-DV offences (59.2%).²⁰⁷ Supervised CCOs were also for a longer duration (median 15 months) than those CCOs that were unsupervised (median 12 months).²⁰⁸

Conditional release orders (CROs) were imposed in 19.6% of DV offences: 8.1% with conviction and 11.5% without. The median and mode term of CROs was 12 months (54.9%) and the middle 50% range was 12 to 18 months (70.0%). Supervision was a condition of 21.3% of CROs, significantly higher than for non-DV offences (10.2%).²⁰⁹ Supervised orders were more likely if the CRO was with conviction (31.7%) than without conviction (14.1%).²¹⁰ A similar pattern was observed for non-DV offences (20.3% compared with 4.5% respectively).²¹¹ The median duration of supervised and unsupervised CROs, with or without conviction, was 12 months.

Full-time imprisonment was imposed in 18.0% of DV offences. The median term of imprisonment was 7 months, compared with 6.5 months for non-DV offences.²¹² The mode was 12 months (14.2%) and the middle 50% range was 3 to 12 months (73.0%). By comparison, for non-DV offences, the mode was 3 months (13.3%) and the middle 50% range was 3 to 11 months (61.5%). For DV offenders, the median aggregate/effective term of imprisonment was 12 months and the median aggregate/effective NPP was 6 months. By comparison, the median aggregate/effective term of imprisonment for non-DV offenders was 10 months²¹³ and the median aggregate/effective NPP was 6 months.²¹⁴

Intensive correction orders (ICOs) were imposed in 9.8% of DV offences. The median duration of ICOs was 9 months, the mode was 12 months (22.3%) and the middle 50% range was 6 to 12 months (67.0%). The median aggegate/effective term of an ICO was 12 months.

Fines were imposed for 9.6% of DV offences. The median and mode fine amount was $500 (21.5%) and the middle 50% range of fines was $350 to $750 (55.1%). Fine amounts for non-DV offences were higher (median $550 and middle 50% range $400 to $800).²¹⁵

Convictions recorded with no other penalty (s 10A) were imposed in 2.7% of DV offences.²¹⁶

Dismissals (s 10(1)(a)) were imposed in 1.7% of DV offences.

While supervision is a standard condition of ICOs, it is an additional condition for CCOs and CROs. Supervised orders were imposed on 54.8% of DV offenders whose principal penalty was either an ICO (100%), CCO (68.9%) or CRO (18.7%). By comparison, non-DV offenders were less likely to have a supervision condition imposed (41.6%),²¹⁷ comprising 54.8% of CCOs²¹⁸ and 8.6% of CROs.²¹⁹

Home detention and electronic monitoring are additional conditions available for ICOs only. For DV offenders whose principal penalty was an ICO, 1.7% had a home detention condition imposed and 4.5% had an electronic monitoring condition.

Community service work (CSW) is an additional condition only available for ICOs and CCOs. CSW was imposed on 14.9% of DV offenders whose principal penalty was either an ICO (37.7%) or a CCO (10.0%). A CSW condition was more likely to be imposed on non-DV offenders whose primary penalty was a CCO (13.7%).²²⁰ Regardless of the type of penalty, the median CSW required to be performed was 100 hours. The mode was also 100 hours (33.8%) and the middle 50% range was 80 to 150 hours (60.7%). Although the median CSW hours was the same for DV and non-DV offenders, significantly fewer DV offenders (37.0%) than non-DV offenders (44.8%) were required to undertake more than 100 hours CSW.²²¹ For DV offenders, while the median CSW hours was the same for ICOs and CCOs, the distribution was significantly different with 41.9% of CSW longer than 100 hours imposed for ICOs, compared with 33.1% for CCOs.²²²

Information concerning the following additional and further conditions was obtained from a random sample of cases,²²³ and relates to those DV offenders whose primary penalty was an ICO, CCO or CRO.

A condition requiring the offender to participate in a rehabilitation program or to receive treatment was imposed on 32.0% of DV offenders. The most common programs and treatment were for mental health or medical issues (13.6%), substance abuse (12.6%), DV and relationship issues (8.9%) and anger management (6.3%). Other programs (1.1%) included those related to education, parenting, personal development/life skills, gambling addiction and driving. More than one program or treatment type could be ordered. The type was unspecified in 1.4% of cases.

A condition requiring abstention from alcohol or drugs or both was imposed on 10.8% of DV offenders. A condition requiring abstention from alcohol was ordered in 7.1% of cases, while a condition requiring abstention from drugs was ordered in 7.6% of cases.

Other additional conditions imposed less frequently on DV offenders were a place-restriction condition prohibiting the frequenting of, or visits to, a particular place or area (1.1%), a non-association condition prohibiting association with particular persons (0.6%) and a curfew condition (0.5%).²²⁴

Further conditions were imposed on 11.8% of DV offenders. These included conditions to comply with an AVO (9.3%) and/or not to assault, intimidate or harass the victim (2.0%). In a small number of cases, other conditions (0.9%) included accommodation and housing arrangements and travel orders.

The potential impact of s 4A of the CSP Act requiring that full-time imprisonment or a supervised order must be imposed for a DV offence, unless the court is satisfied a different sentencing option is more appropriate,²²⁵ is reflected in Figure 2.

Figure 2. Full-time imprisonment or supervised orders (s 4A) imposed for selected offences (N=83,053) and offenders (N=49,370) by DV offence and offender groups finalised in the Local Court in the study period

Figure 2 shows that just over half of DV offenders (52.2%), accounting for three in five DV offences (60.4%), were sentenced to full-time imprisonment (12.0% and 18.0% respectively) or a supervised order (40.2% and 42.4% respectively). This was significantly higher than for non-DV offenders (36.8%) and offences (43.9%).²²⁶

Section 4B of the CSP Act provides that an ICO must not be imposed for a DV offence unless the victim and any person with whom the offender is likely to reside are adequately protected. It further provides that a home detention condition cannot be imposed if the court believes the offender will be residing with the victim and, in relation to the imposition of a CCO or CRO, the court must also consider the victim’s safety.²²⁷ As stated previously, just under one in 10 DV offences (9.8%) received an ICO and only 2.0% of these (or 0.2% overall) included a home detention condition. In respect of DV offenders, 8.3% received an ICO, of which 1.7% (or 0.1% overall) included a home detention condition.

Maximum penalty: 2 yrs and/or 50 pu.

When an AVO is contravened, the person intended to be protected is left without protection, the authority of the court is undermined and the rule of law is compromised.²²⁸

This offence recorded the highest rate of offences that were DV offences (96.8%). It was also the most common DV offence accounting for 31.7% of all DV offences.

In respect of all offenders, this offence recorded the highest rate of offenders who were sentenced for multiple counts of this offence (22.4%), had another offence that was the principal offence (43.2%), had a prior record (90.1%) and had a breach offence (31.6%). For DV offenders, this offence also had the highest rate of offenders who were Indigenous offenders (35.1%), had pleaded guilty (87.2%), had a prior record of DV offending (70.0%), a breach of a DV offence (27.3%), and had previously been imprisoned (36.3%).

Figure 3 shows the types of penalties imposed for DV and non-DV offences of contravene prohibition/restriction in AVO.

Figure 3. Distribution of penalty types for contravene prohibition/restriction in AVO by DV offence group finalised in the Local Court in the study period (N=20,898)

The most common penalty imposed for DV offences of this kind was a CCO (37.3%), followed by full-time imprisonment (23.1%). The median CCO duration was 12 months and the median term of imprisonment was 6 months.

ICOs (10.8%) and fines (10.7%) were the next most common penalties imposed for DV offences. The median duration of ICOs was 7 months and the median fine amount was $500.

CROs were imposed on 11.6% of DV offences: 6.5% with conviction and 5.0% without conviction. The median CRO duration was 12 months. Other penalties included s 10A convictions (5.4%) and s 10 dismissals (1.2%).

The distribution of penalties was significantly less severe for non-DV offences.²²⁹ Although a CCO was the most common penalty (34.8%), full-time imprisonment was much less likely to be imposed (10.5%) while other penalty types, particularly fines (17.7%), were more likely.

Conditions were imposed on those DV offenders who were sentenced to an ICO, CCO or CRO as their primary penalty. Of these, supervision was a condition of the order in 58.8% of cases, significantly higher than for non-DV offenders (46.0%).²³⁰ The largest difference was in relation to CCOs where 68.8% of DV offenders were ordered to submit to supervision compared with 58.5% of non-DV offenders.²³¹

Home detention (2.5% of ICOs) and electronic monitoring (5.8% of ICOs) were not commonly imposed. Nevertheless, compared to the other selected offences, this offence had the highest rate of electronic monitoring.

CSW was a condition of the order for 13.3% of the DV offenders whose principal penalty was either an ICO (31.5%) or a CCO (9.7%). Regardless of the penalty type, the median CSW required to be performed was 100 hours.

Maximum penalty: 2 yrs and/or 50 pu.

Seven out of 10 (69.7%) of the offences of common assault were DV offences. This was the second most common DV offence accounting for 25.3% of all DV offences.

In respect of all offenders, this offence recorded the highest rate of offenders sentenced for only one offence (45.6%), with no prior record (35.3%) and who had not been previously imprisoned (81.0%).

Figure 4 shows the types of penalties imposed for DV and non-DV offences of this kind.

Figure 4. Distribution of penalty types for common assault by DV offence group finalised in the Local Court in the study period (N=22,983)

The most common penalty imposed for DV offences was a CCO (38.6%) with a median CCO duration of 12 months. A CRO was the next most common penalty, imposed for 30.9% of DV offences: 10.4% with conviction and 20.6% without conviction. Compared to the other selected offences, this offence recorded the highest rate of CROs with and without conviction. The median CRO duration was 12 months.

Compared to other selected offences, this offence had the second lowest rate of custodial sentences. Full-time imprisonment was imposed for 11.7% of DV offences and the median term of imprisonment was 8 months. ICOs were imposed for 8.1% of DV offences with a median duration of 9 months.

Fines accounted for 8.0% of the penalties imposed for DV offences and the median fine amount was $550. Other penalties included s 10 dismissals (1.9%) and s 10A convictions (0.8%).

The distribution of penalties was significantly less severe for non-DV offences.²³³ The most marked difference was in the much higher use of fines for the non-DV offences (18.4%), with fine amounts higher than for DV offences (median $600).²³⁴ If sentenced to full-time imprisonment, non-DV offences received shorter terms of imprisonment (median 6 months).²³⁵

Conditions were imposed on DV offenders who were sentenced to an ICO, CCO or CRO as their primary penalty. Of these, supervision was a condition in 44.2% of cases, significantly higher than for non-DV offenders (32.8%).²³⁶ In relation to CCOs, 64.9% of DV offenders were required to submit to supervision compared with 50.7% of non-DV offenders.²³⁷ In relation to CROs, 16.7% of DV offenders were required to submit to supervision compared with 6.7% of non-DV offenders.²³⁸

Home detention (1.2% of ICOs) and electronic monitoring (3.5% of ICOs) were not commonly imposed.

CSW was a condition of the order for 13.1% of the DV offenders whose principal penalty was either an ICO (35.9%) or a CCO (8.9%). Regardless of the penalty type, the median CSW required to be performed was 100 hours.

Maximum penalty: 5 yrs and/or 50 pu. Jurisdictional maximum in Local Court: 2 yrs and/or 50 pu.

Almost three-quarters (74.7%) of stalk or intimidate with intent to cause fear of physical or mental harm offences were DV offences. This was the third most common DV offence accounting for 17.1% of all DV offences.

Figure 5 shows the types of penalties imposed for DV and non-DV offences of this kind.

Figure 5. Distribution of penalty types for stalk or intimidate with intent to cause fear of physical or mental harm by DV offence group finalised in the Local Court in the study period (N=14,390)

The most common penalty imposed for DV offences was a CCO (45.2%), the highest rate of any of the selected offences, with a median duration of 14 months.

Custodial sentences were the next most common penalty. Full-time imprisonment was imposed for 19.2% of DV offences and the median term of imprisonment was 8 months. ICOs were imposed for 10.2% of DV offences and the median duration of ICOs was 9 months.

A CRO was imposed in 18.1% of DV offences: 8.3% with conviction and 9.9% without conviction. The median CRO duration was 12 months.

Fines accounted for 5.9% of penalties imposed for DV offences and the median fine amount was $500. Other penalties included s 10A convictions (0.8%) and s 10 dismissals (0.5%).

The distribution of penalties was not significantly different for non-DV offences. However, if sentenced to full-time imprisonment or a CCO, non-DV offences received shorter terms of imprisonment (median 7 months)²⁴⁰ and CCOs of shorter duration (median 12 months).²⁴¹

Conditions were imposed on the DV offenders who were sentenced to an ICO, CCO or CRO as their primary penalty. Of these, supervision was ordered in 61.5% of cases, significantly higher than for non-DV offenders (48.4%).²⁴² In relation to CCOs, 71.0% of DV offenders had a supervision condition imposed compared with 58.9% of non-DV offenders.²⁴³ In relation to CROs, 22.5% of DV offenders had a supervision condition imposed compared with 10.6% of non-DV offenders.²⁴⁴

Home detention (1.7% of ICOs) and electronic monitoring (4.7% of ICOs) were not commonly imposed.

CSW was a condition of the order for 13.4% of DV offenders whose principal penalty was either an ICO (36.0%) or a CCO (9.0%). Regardless of the penalty type, the median CSW required to be performed was 100 hours.

Maximum penalty: 5 yrs. Jurisdictional maximum in Local Court: 2 yrs and/or 20 pu (property value does not exceed $2,000); 2 yrs and/or 50 pu (property value does not exceed $5,000); 2 yrs or 100 pu (property value exceeds $5,000).

Destroy or damage property offences were the least likely to be DV offences (59.5%). This offence accounted for 14.6% of DV offences.

In respect of DV offenders, this offence was not the principal offence for 45.7% of offenders, the highest rate for any of the selected offences.

Figure 6 shows the types of penalties imposed for DV and non-DV offences of this kind.

Figure 6. Distribution of penalty types for destroy or damage property by DV offence group finalised in the Local Court in the study period (N=15,271)

The most common penalty imposed for DV offences was a CCO (35.3%) with a median duration of 12 months.

A fine was the next most common penalty accounting for 18.8% of penalties imposed for DV offences, the highest rate of any of the selected offences. The median fine amount was $500.

A CRO was imposed on 23.2% of DV offences: 8.6% with conviction and 14.5% without conviction. The median CRO duration was 12 months.

Compared to other selected offences, this offence had the lowest rate of custodial sentences with the shortest durations. Full-time imprisonment was imposed for 11.0% of DV offences and the median term of imprisonment was 4 months. ICOs were imposed for 6.0% of DV offences and the median duration of ICOs was 6 months.

Although not frequently imposed, this offence recorded the highest rates of s 10A convictions (3.8%) and s 10 dismissals (1.9%).

The distribution of penalties was significantly less severe for the non-DV offences,²⁴⁶ with the most striking difference being in the much higher use of fines (28.7%) and in amounts that were significantly higher (41.5% incurred fine amounts above $500 compared with 28.7% of DV offenders).²⁴⁷ Where sentences of full-time imprisonment were imposed, the terms of imprisonment were shorter for non-DV offences (median 3 months).²⁴⁸

Conditions were imposed on those DV offenders who were sentenced to an ICO, CCO or CRO as their primary penalty. Of these, supervision was ordered in 47.5% of cases, significantly higher than for non-DV offenders (36.3%).²⁴⁹ In relation to CCOs, supervision was a condition of the order for 71.7% of DV offenders compared with 58.5% of non-DV offenders.²⁵⁰ In relation to CROs, 17.0% of DV offenders were required to submit to supervision compared with 9.7% of non-DV offenders.²⁵¹

Home detention (1.1% of ICOs) and electronic monitoring (2.2% of ICOs) were not frequently imposed.

CSW was a condition of the order for 10.2% of the DV offenders whose principal penalty was either an ICO (34.8%) or CCO (7.3%). Regardless of the penalty type, the median CSW required to be performed was 100 hours.

Maximum penalty: 5 yrs.

Jurisdictional maximum in Local Court: 2 yrs and/or 50 pu.

Just over two-thirds (68.1%) of all assault occasioning actual bodily harm offences were DV offences. This offence accounted for 9.6% of the DV offences.

In respect of all offenders, this offence recorded the second highest rate of offenders who were sentenced for only one offence (44.3%), not far behind common assault (45.6%).

Figure 7 shows the types of penalties imposed for DV and non-DV offences of this kind.

Figure 7. Distribution of penalty types for assault occasioning actual bodily harm by DV offence group finalised in the Local Court in the study period (N=8,904)

The most common penalty imposed for DV offences was a CCO (41.8%). The median CCO duration was 18 months.

Custodial sentences were the next most common penalties. Full-time imprisonment was imposed for 23.7% of DV offences and the median term of imprisonment was 12 months. ICOs were imposed for 14.6% of DV offences and the median duration of the ICOs was 12 months.

A CRO was imposed for 15.3% of DV offences: 6.8% with conviction and 8.5% without conviction. CROs without conviction were longer than CROs with conviction. The median duration of the former was 18 months compared with a median of 12 months for the latter.²⁵³

Although fines accounted for only 4.2% of penalties imposed for DV offences, the fine amounts were the highest of any of the selected offences. The median fine amount was $800.

A very small percentage of DV offences received s 10 dismissals (0.3%) or s 10A convictions (0.2%).

The distribution of penalties was significantly less severe for non-DV offences.²⁵⁴ In particular, full-time imprisonment was less likely to be imposed (17.0%) while other penalty types such as CCOs (44.2%), ICOs (16.4%) and fines (7.9%) were more likely. The fine amount was also higher for non-DV offences (median $1000).²⁵⁵

Conditions were imposed on the DV offenders who were sentenced to an ICO, CCO or CRO as their primary penalty. Of these, supervision was ordered in 63.6% of cases, significantly higher than for non-DV offenders (53.2%).²⁵⁶ In relation to CCOs, 68.1% of DV offenders required supervision compared with 51.8% of non-DV offenders.²⁵⁷ In relation to CROs, 21.9% of DV offenders required supervision compared with 9.4% of non-DV offenders.²⁵⁸

Home detention (1.6% of ICOs) and electronic monitoring (4.5% of ICOs) were not frequently imposed.

CSW was a condition of the order for 22.7% of DV offenders whose principal penalty was either an ICO (44.9%) or a CCO (15.2%). Regardless of the penalty type, the median CSW required to be performed was 100 hours.

Maximum penalty: 5 yrs. Jurisdictional maximum in Local Court: 2 yrs and/or 100 pu.

Most offences of intentionally choke, etc person without consent were DV offences (95.5%), however they comprised only 0.7% of all DV offences.

In respect of DV offenders, this offence recorded the highest rate of offenders who were sentenced for multiple offences (91.2%) and the second highest rate of male offenders (96.0%).

Figure 8 shows the types of penalties imposed for DV and non-DV offences of this kind.

Figure 8. Distribution of penalty types for intentionally choke, etc person without consent by DV offence group finalised in the Local Court in the study period (N=466)

Custodial sentences were the most common penalty for DV offences, particularly full-time imprisonment (43.4%), the second highest rate of all the selected offences. The median term of imprisonment was 12 months. ICOs were imposed for 21.5% of DV offences, also the second highest rate. The median duration of ICOs was 12 months.

Almost a third of DV offences received a CCO (31.1%). The median CCO duration was 18 months.

The remaining DV offences received CROs (1.1% with conviction and 1.3% without conviction) and fines (1.6%). The median CRO duration was 18 months and the median fine amount was $800.

Conditions were imposed on the DV offenders who were sentenced to an ICO, CCO or CRO as their primary penalty. Of these, supervision was ordered in 85.9% of cases, the second highest rate of all the selected offences. In relation to CCOs, 85.8% of DV offenders required supervision. In relation to CROs, 25.0% of DV offenders required supervision.

Home detention (1.3% of ICOs) and electronic monitoring (2.6% of ICOs) were not commonly imposed.

CSW was a condition of the order for 35.4% of the DV offenders whose principal penalty was either an ICO (51.3%) or a CCO (25.0%), the second highest rate of all selected offences. CSW hours for ICOs were longer than for CCOs: median 150 hours compared with median 100 hours.

Maximum penalty: 10 yrs. Jurisdictional maximum in Local Court: 2 yrs and/or 100 pu.

Most offences of intentionally choke, etc person with recklessness were DV offences (95.0%), however they comprised only 0.2% of all DV offences.

In respect of all offenders, this offence was the principal offence for 96.1% of DV offenders and 100% of non-DV offences, the highest rates of any of the selected offences. This is unsurprising given this offence has the highest statutory maximum penalty. It also had the highest rate of male offenders (96.3%). In respect of DV offenders, this offence also recorded the highest rate of a not guilty plea (30.2%), and the second highest rate of offenders who were sentenced for multiple offences (86.7%).

Figure 9 shows the types of penalties imposed for DV and non-DV offences of this kind.

Figure 9. Distribution of penalty types for intentionally choke, etc person with recklessness by DV offence group finalised in the Local Court in the study period (N=141)

Custodial sentences were the most common penalty for DV offences, particularly full-time imprisonment (47.8%), which was the highest rate of all of the selected offences. The median term of imprisonment was 17.5 months, which was also the longest. This offence also had the highest rate of ICOs which were imposed for 30.6% of DV offences. The median duration of ICOs was 12 months.

Around one in five DV offences received a CCO (20.9%) and the median CCO duration was 22.5 months.

One DV offence received a CRO without conviction (0.7%) for 6 months.²⁶⁰

Conditions were imposed on DV offenders who received an ICO, CCO or CRO as their primary penalty. Of these, supervision was ordered in 94.0% of cases, the highest rate of all the selected offences. In relation to CCOs, 88.0% of DV offenders required supervision.

Home detention (4.9% of ICOs) and electronic monitoring (4.9% of ICOs) were not commonly imposed. Nevertheless, compared to other selected offences, this was the highest rate of home detention.

CSW was a condition of the order for 42.4% of the DV offenders whose principal penalty was either an ICO (51.2%) or a CCO (28.0%), the highest rate of all selected offences. CSW hours for ICOs were longer than for CCOs: median 120 hours compared with median 100 hours.

A conviction and/or sentence appeal was heard and determined in the District Court for 5,307 selected DV offences (8.4%). The vast majority (5,024 or 94.7%) of these were appeals against the severity of the sentence and 499 or 9.4% were appeals against conviction. This equates to a severity appeal rate of 7.9% and a conviction appeal rate of 0.8%. There was only one Crown appeal against the inadequacy of the sentence.²⁶¹ The rate of severity appeals for DV offences was significantly higher than for non-DV offences (5.8%).²⁶² Over one-third of the conviction appeals (194 or 38.9%) and almost two-thirds of the severity appeals (3,198 or 63.7%) were allowed. Successful conviction appeals constitute 0.3% and successful severity appeals constitute 5.0% of sentences imposed in the Local Court for the selected offences. The Crown appeal was dismissed.

The most commonly appealed DV offence, with over one-third of the appeals, was contravene prohibition/restriction in AVO (35.8%), followed by common assault (20.7%), stalk and intimidate (18.8%) and assault occasioning actual bodily harm (13.5%). However, regardless of whether the appeal was against conviction or sentence, the offences with the highest rates of appeal were intentionally choke, etc person with recklessness (4.5% and 18.7% respectively) and intentionally choke, etc person without consent (2.9% and 19.5% respectively). The offence with the lowest rates of appeal was destroy or damage property (0.2% and 4.9% respectively).

Stalk and intimidate had the highest success rate of severity appeals, with two-thirds (66.7%) allowed for this offence. For the offences of destroy and damage property and common assault, DV offences had a lower success rate of severity appeals than did non-DV offences (61.1% compared with 74.4% and 63.5% compared with 70.8%, respectively).²⁶³

Almost three-quarters of the severity appeals for DV offences related to a sentence of full-time imprisonment (72.3%). The next most common penalties appealed were CCOs (12.5%) and CROs with conviction (5.3%). In terms of severity appeal rates, just over one-third of prison sentences (35.2%) were appealed, by far the highest rate of any penalty type appealed, followed by CROs with conviction (3.7%). Appeals with the highest success rates related to fines (74.3%) and CROs with conviction (72.5%). Fines, however, had a relatively low rate of appeal (1.8%).

When a severity appeal is allowed, several aspects of a sentence may be varied and are not limited to a variation in penalty type or length.²⁶⁴ However, the majority of successful severity appeals resulted in a change to at least either the primary penalty type (43.2%) or the penalty duration for full-time imprisonment (39.7%).²⁶⁵ While non-DV offences (59.1%) had significantly higher rates of change in primary penalty type than DV offences, DV offences had higher rates of changes to penalty duration, regardless of whether the penalty was full-time imprisonment (39.7%) or a community-based order (11.4%).²⁶⁶ Backdating sentences was the next most common way a sentence was varied (4.8%). This pattern was consistent across all the selected offences.

Figure 10 shows the distribution of appeal outcomes for selected offences.

Figure 10. Successful severity appeal outcomes for selected offences by DV offence group finalised in the Local Court in the study period (N = 4,012)

Figure 11 shows the distribution of penalty types at first instance compared to the distribution after correcting for appeals. Regardless of the offence, the effect of conviction and severity appeals on sentences, including in relation to the application of s 4A, was minimal. While the use of full-time imprisonment decreased from 18.0% at first instance to 16.9% after correcting for appeals, the use of ICOs increased by half a percentage point from 9.8% to 10.3%. The use of CROs with conviction as a penalty option decreased 0.1 percentage points, however the use of CROs without conviction increased by 0.7 percentage points. The shift in the sentencing patterns resulted in a slight reduction of 0.3 percentage points in the imposition of full-time imprisonment or a supervised order in accordance with s 4A.

Figure 11. Effect of successful appeals on the distribution of penalties for selected offences finalised in the Local Court in the study period before (N=63,309) and after (N=63,115*) correcting for appeal outcomes

*Excludes 194 successful conviction appeals where the first instance sentence was quashed.