28 January 2021

She escaped with her life, he escaped with a suspended sentence: call for DV sentencing reform

| Dominic Giannini
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ACT Law Courts

Advocates have called for a change to domestic and family violence sentencing principles. Photo: Michelle Kroll.

Off antidepressant medication and severely intoxicated, he grabbed an axe and started swinging at his partner as she begged for her life.

She tried to calm him down and talk him out of suicide. He locked the door and responded with a swing that narrowly missed her head.

From outside the bedroom, their eldest daughter begged her father to stop. He ordered the four crying children into the car and eventually held the axe to his daughter’s throat.

When police arrived, he sped away with the children still in the car. He was later arrested after falling asleep at his uncle’s house.

In the ACT, courts do not need to consider the dynamics of family violence or the implications of sustained domestic abuse when sentencing perpetrators.

He received a 16 month suspended sentence after serving four months in prison. The appeal for a more severe sentence was rejected.

How offenders are sentenced for family violence offences in cases like this has led to domestic violence prevention advocates calling for fairer access to justice by changing the mandatory factors magistrates must consider when sentencing a perpetrator. Magistrates currently do not need to take domestic violence into account when sentencing a person in the ACT.

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Concerns have been raised with the ACT Law Society that evidence of family violence is sometimes not treated with the appropriate gravity in sentencing.

“Practitioners working in the family law field perceive a contrast between those sentences relating to family violence matters, and those where the violence has been perpetrated against strangers,” ACT Law Society president Elizabeth Carroll said.

“The perception is that when a stranger is involved, the recognition of danger to the community at large results in a more serious sentencing outcome, while in cases where the danger is only seen to be to the family, sentencing is less severe.”

The aforementioned case has been directly brought to the attention of the Minister for Justice Health, Emma Davidson, whose incoming ministerial briefing stated that the finding of there being no basis for a special approach to sentencing for family violence offences was “inconsistent with the sentencing principles of other Australian jurisdictions”.

“This finding … may discourage ACT courts from taking family violence into account,” the briefing said. “ACT sentencing law may require amendments to clarify principles for dealing with family violence offences.”

The appeal was dismissed as there is no law to allow for the separate consideration of family violence offences when it comes to handing down a sentence, “whether it be a more lenient or a more severe sentencing”.

Women’s Legal Centre CEO Elena Rosenman says this may also complicate matters when a victim of domestic or family violence has been charged with a criminal offence after reacting to years of domestic abuse.

This can lead to unjust penalties, which is why family and domestic violence should also be considered as a mitigating factor in sentencing, she said.

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The ACT Crimes (Sentencing) Act states that the court “must not reduce the severity of a sentence it would otherwise have imposed” on the basis that the offence is a family violence offence.

“Across Australia, women’s legal services are concerned about the responses to women who have been charged with criminal offences, where their use of violence is in response to years of family violence they have experienced,” Ms Rosenman said.

“Often, the conviction is only related to a single incident in what has been a long history of family violence. This dynamic is not well understood by first responders and potentially in sentencing.

“Considering family and domestic violence as a pattern would help capture the true dynamic of family violence relationships … [and] bring better justice outcomes for women who are charged for family violence offences.”

If consideration of family violence in sentencing becomes compulsory under law, it could become a point of appeal if the magistrate failed to take it into account.

Women’s Legal Centre principal solicitor Claudia Maclean said the inclusion of this provision in legislation will elevate the issue and increase the public’s education.

“When police are called out sometimes they can identify the wrong victim and actually having an avenue where the dynamics of family violence is acknowledged is really valuable,” she said.

“The justice system [is] still very much incident-based, can you prove this, this and this beyond a reasonable doubt. But when you start putting things into context, seemingly innocuous behaviour, or offending behaviour, can start making a lot more sense.”

Family violence is an aggravating offence in Queensland, South Australia and Western Australia. In Tasmania, courts cannot order home detention for family violence if the offender lives with the family, and it becomes an aggravating factor if a child was present.

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In NSW, there is a presumption that family violence offenders will be sentenced to full-time detention or a supervised order.

A Justice and Community Safety spokesperson said the Northern Territory and Victorian courts have found the need for general deterrence in family violence matters.

In the ministerial briefing, JACS said it would work with key agencies to prepare advice on the potential to amend the sentencing legislation, including what amendment options are available.

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