10 August 2021

Taking 'good character' into account jeopardises justice for DV survivors: Victim of Crimes Commissioner

| Dominic Giannini
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Heidi Yates and Yvette Berry

Victims of Crime Commissioner Heidi Yates says taking good character as a mitigating factor during sentencing can deter victims from coming forward. Photo: Dominic Giannini.

‘Good character’ should not be used as a mitigating factor for domestic and sexual violence sentencing, the ACT’s Victim of Crimes Commissioner Heidi Yates says.

The insidious nature of domestic and family violence, including sexual abuse, gives the perpetrator the ability to maintain a public and private image, and a person’s reputation or good character may allow them to abuse their power or relationship with the victim, Ms Yates said.

“An offender’s good character might enable that offending to be masked and remain undetected given the private nature of domestic and family violence,” she said.

ACT courts have not been able to use an offender’s good character to mitigate the severity of a sentence for child sexual abuse matters since 2018, following recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.

Mitigated or lenient sentences can skew the course of justice and diminish a victim-survivor’s capacity to come forward in the future, Ms Yates said.

“That recommendation was on the basis that they use their reputation or good character to facilitate the offending or to mask the behaviour as it occurs over time,” she said.

“I think those considerations are relevant in the context of the way we think about how domestic and family violence is perpetrated. For example, DFV (domestic and family violence) cases are also characterised by a misuse of power.”

READ ALSO Long waitlists and low prosecution rates deterring sexual assault survivors

Ms Yates’ comments come in the context of the ACT’s domestic violence law reform package, the first phase of which passed the Legislative Assembly last week.

The new laws allow magistrates to consider offences in the context of domestic violence during sentencing, which may lead to tougher sentences.

It will also allow police to enter private premises with their body cameras turned on to collect vital evidence relating to domestic violence.

Privacy laws had previously handicapped officers using recording devices on private premises. The new regulations will come into effect once police develop a framework – which must be ticked off by the government – in the next six months.

The second phase of reforms is slated to be introduced by the end of the year and will likely introduce aggravated domestic violence and sexual assault offences.

The aggravated offences will increase the maximum penalties that can be applied by a magistrate during sentencing.

Ms Yates said the proposed good character reforms should form part of this second phase to increase faith in the Territory’s criminal justice system. The first phase allows for greater consistency during the court process.

“At the heart of this, we are looking at improving the effectiveness and efficiency of family violence charging and sentencing practices to better match community expectations,” she said.

“By extension, that will build faith in the criminal justice process.

“One reason victims decide not to report is that the sentencing regime is ineffective and inconsistent, or they had come forward in the past and the sentence was so lenient that they appeared to give the perpetrator leave to continue offending with limited consequence.”

Shane Rattenbury

Attorney-General Shane Rattenbury. Photo: Dominic Giannini.

Attorney-General Shane Rattenbury said victims have had an “unfair run in the system” and the reforms would help more people come forward and navigate the criminal justice system.

“Where a matter does go to court, there should be strong accountability for perpetrators and a strong signal that penalties will be applied when people use violence in those intimate family situations,” he said.

“It is important that courts can take into account matters such as whether it occurred in the privacy of a family home, whether children were present and whether an offender has committed offences before … to make sure sentencing does reflect the circumstances of the case and the community expectation.”

If you or someone you know needs help, support is available through the DVCS 24/7 Crisis Line on 6280 0900 or through 1800 RESPECT. You can also contact Lifeline’s 24-hour crisis support line on 13 11 14. In a life-threatening situation, call triple-zero.

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I wonder if the alleged Murrumbateman murderer will play this card?

Hopefully the time for honoring yourself will soon be at an end.

If you are committing domestic violence, being otherwise of ‘good fame and character’ up to the point of being in court.

Is pretty much irrelevant, unless he can be kept away from his victims.

Should good character be able to be used as a mitigating factor for any crime?
The perpetrator was obviously not of good character when thy committed the crime.

It is sad, but it seems that almost every criminal, no matter how loathsome, can find plenty of people to vouch for their good character.

I hope magistrates are smart enough to dismiss those biased testimonials.

Yes, I’d have thought that your good character goes out the window the moment you choose to commit any crime.

Spot on Isn and Spiral. It’s good to see such progress in areas of domestic violence and sexual assault. However, I fail to see how someone can get tanked on a Saturday night and sucker punch some poor individual and then when they appear before the courts much later, usually dressed in a suit, the “totally out of character” card (with accompanying references) is played by their lawyer.

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