Tuesday, 23 June, 2009
Family violence victims will be better protected following the adoption of guiding principles to assist Magistrates when sentencing breaches of intervention orders.
Deputy Premier and Attorney-General Rob Hulls today welcomed the release of the Sentencing Advisory Councils review of sentences for breaches of family violence intervention orders, which recommended the adoption of guiding principles in sentencing.
The Council said the principles would assist sentencing courts, police prosecutors and defence lawyers dealing with breaches of intervention orders and promote greater consistency of approach.
Mr Hulls said the guidelines would not displace judicial discretion but would be an additional tool to assist Magistrates in sentencing.
The Brumby Labor Government is taking action to help protect women and children experiencing family violence, Mr Hulls said.
These sentencing principles are one way to better ensure the safety and protection of victims.
The principles will assist Magistrates to identify the relevant factors in sentencing for breaches of intervention orders, to place the appropriate weight on them, and to promote consistency in sentencing.
Mr Hulls said the Government would carefully consider all the recommendations made by the Council.
This report is an important contribution to our fight against family violence in our community and how we can best respond to protect victims and hold perpetrators accountable for their actions, Mr Hulls said.
Victoria has had enough of this sort of behaviour, behaviour which has an insidious and wide-reaching damaging effect.
This report confirms that the justice system must continue to empower victims of family violence giving them the strength to come forward, seek intervention and protection and ensure those responsible answer for their crimes.
Mr Hulls said the Government had instituted significant reforms to tackle family violence, including the new Family Violence Protection Act 2008, unprecedented funding levels and a review of family violence deaths.
The new Act allows police to respond more quickly to family violence incidents and eases the emotional burden on victims, Mr Hulls said.
The Councils review was recommended by the Victorian Law Reform Commission in its report on family violence laws.
Media contact: Meaghan Shaw 9651 5799 or 0409 536 652 www.premier.vic.gov.au
The Sentencing Advisory Councils View
6.34 If, through their sentencing practices, courts are perceived by victims, family violence service providers, police, offenders, practitioners and the community generally as not taking breaches of intervention orders seriously, this may serve to perpetuate cultural attitudes that allow family violence to flourish in our society. Victims of family violence are unlikely to report incidents, let alone undertake legal proceedings, if they see that the outcomes are more often than not a slap on the wrist. Police are less likely to treat family violence incidents with the degree of attention they deserve if they perceive that breaches are not treated as seriously by the courts as other offending behaviour. This in turn means that offenders have little reason to cease their violent behaviour.
6.35 In order to promote more appropriate and consistent sentencing practices for breach of family violence intervention orders, the Council is of the view that magistrates would be assisted by some guidance in addition to the general principles provided in the Sentencing Act 1991 (Vic). These general principles, designed as they are for application to criminal behaviour occurring within the adversarial offendervictim paradigm, can offer only minimal guidance in an area that arguably does not fit neatly within this traditional conception of the criminal law.592
6.36 The Council has developed some guiding principles, drawing on its research, consultations and data analysis, for use by those responsible for sentencing breach of family violence intervention orders. These can be found in Appendix 1. In the guiding principles, the Council identifies a number of sentencing factors that are particularly relevant to breach of family violence intervention orders, and suggests ways in which judicial officers may consider these factors. It is intended that this discussion will assist courts in placing appropriate weight on the factors most relevant to this offence.
6.37 The guidance provided is not in any way designed to displace judicial discretion. As Fox and Freiberg have commented, judicial discretion in determining sentence occupies a central position in the criminal justice system.593 This guidance is for the specific purpose of ensuring that magistrates have as much information as possible at their disposal to assist them in exercising their discretion.
6.38 In addition, the Council intends that these guiding principles will promote some level of consistency of approach among sentencers. The goal is not absolute consistency of outcome as this is both unachievable and undesirable. As the Victorian Court of Appeal held recently in R v MacNeil-Brown:
There is an ambit of reasonable disagreement in the exercise of the sentencing discretion. It is a fundamental precept of sentencing law that there is no single correct sentence in a particular case, no particular opinion being uniquely right, and that there will be differences of opinion which, within a given range, are legitimate and reasonable.594
6.39 The New South Wales Sentencing Council made a clear distinction between consistency of approach and consistency of outcome in relation to sentencing. The NSW Council defined consistency in sentencing as meaning: account is taken of the same factors and that similar weight is given to those factors.595 The Sentencing Advisory Councils guiding principles are intended to achieve this outcome.
6.40 The Council also see a wider role for the guiding principles to be used by all involved in the sentencing process. Police prosecutors and defence lawyers may also use the guiding principles in formulating their submissions to the court at sentencing hearings for breaches of family violence intervention orders. The principles can promote consistency by providing a framework for submissions across different courts around Victoria.
Guiding Principles for Sentencing Contraventions of Family Violence Intervention Orders
1. Purpose of Sentencing
1.1 Sentencing for contravention of a family violence intervention order takes place within the general context of section 5 of the Sentencing Act 1991 (Vic), which states that the purposes of sentencing are punishment, deterrence, rehabilitation, denunciation, community protection or a combination of two or more of these purposes. Appropriately balancing these purposes is a delicate task in family violence cases, where measures intended to protect the victim can place them at increased risk, and sentences designed to punish the offender may indirectly punish the victim.
1.2 As the function of a family violence intervention order is to protect the victim from future harm, the primary purpose of sentencing for contravention of an order should be to achieve compliance with the order or future orders to ensure the safety and protection of the victim. The protection of the community, which encompasses protecting the victim, should be the central purpose against which other sentencing purposes are balanced.
1.3 Denunciation, deterrence and punishment are also important purposes in sentencing for contravention of a family violence intervention order. The intervention order system relies on the perception that there will be serious consequences if orders are breached. However, caution should be exercised that these purposes do not conflict with considerations of community protection, particularly as regards the victim. For example, some offences will require a sentence of immediate imprisonment that appropriately punishes the offender and denounces the offenders conduct. Such a sentence will protect the victim in the short term by incapacitating the offender and may have some deterrent effect. However, the long-term protection of the victim is also important.
1.4 Some sentences which are intended to punish the offender may fail to achieve that purpose. For example, the most common sentencing disposition for breaching an intervention order is a fine. The purpose of a fine is generally said to be to punish the offender and act as a deterrent to future offending by the offender and others. However, the dynamics of family violence mean that fines can punish the victim(s) as much or more than the offender. Payment of the fine by the offender may affect his ability to provide financial support to the victim and her family.The offender may even coerce the victim into paying the fine. Therefore, sentences with more flexibility in terms of punishment (such as conditional orders that can incorporate community work and/or a financial condition) which are structured to ensure that it is the offender that must serve the punishment may be more effective in achieving this sentencing purpose (see further [3.62][3.65]). Another sentencing purpose which can be compatible with protecting the victim (particularly in the long term) is rehabilitation. There will be occasions where a sentence with coercive rehabilitation requirements (such as mandatory attendance at a behavioural change course) as well as a punitive element (such as community work or a financial condition) strikes a better balance between the purposes of sentencing than a sentence such as a fine. Such sentences may achieve more in ensuring long-term compliance with the intervention order.
Secretary Spca saidIt is interesting, that once again, we see the victim portrayed as the mother (female) and her family when current statistics show clearly that this is not a gender specific environment
1.6 The weight given to the often competing purposes of sentencing set out in section 5 of the Sentencing Act 1991 (Vic) will differ according to the circumstances of each case. However, in all cases involving contravention of an intervention order, the central purpose should be achieving compliance with the order to ensure the protection of the victim and the community (see further [3.6][3.19]).
In April 2008, the Attorney-General asked the Sentencing Advisory Council to report on:
1. The appropriate statutory maximum penalties for the offences of breaching:
(a) a family violence intervention order;
(b) a stalking intervention order; and
(c ) a family violence safety notice.
2. Sentencing practices for the offence of breaching an intervention order.
This reference arose from the Victorian Law Reform Commission's Report, Review of Family Violence Laws, which recommended that the Council review the sentencing of defendants and penalties imposed for breaching intervention orders.
The Council provided the first part of the advice to the Attorney-General on these maximum penalties in June 2008 in the Breaching Intervention Orders Report. The Councils advice was adopted in the Family Violence Protection Act 2008 (Vic).
The Councils second report on sentencing practices was released in June 2009 and is attached above